Major FL Court REVERSES Stalking Injunction: “No Substantial Emotional Distress”

September 11, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 2nd District Court of Appeal reversed a trial judge’s issuance of a stalking injunction, as it was shown that the appellant did not cause substantial emotional distress to the appellee – even though his conduct was far from ideal.

CASE: Jones v. Jackson, 67 So.3d 1203 (Fla. 2d DCA 2011)

Charge(s): Stalking Injunction

Outcome: Injunction TOSSED OUT, as there was insufficient evidence to sustain the finding that the petitioner suffered “substantial emotional distress” due to the respondent’s conduct.

Stalking and Aggravated Stalking in Florida

Stalking and aggravated stalking are serious offenses in Florida that can carry significant legal and financial penalties. Stalking occurs when a person willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person. Florida Statutes Section 784.048(2) regulates the offense of stalking.

If someone has been accused of stalking by harassing the victim, the State must establish that the defendant engaged in a course of conduct directed at the victim that:

• Served no legitimate purpose
• Would cause substantial emotional distress to a reasonable person
• Did cause substantial emotional distress to the victim

If charged criminally, stalking is a first-degree misdemeanor – punishable by up to 1 year in jail and a $1,000 fine. Cyberstalking carries the same criminal penalties as stalking, and occurs when someone does either of the following:

• Engages in a course of conduct to communicate words, images, or language through electronic methods, either directly or indirectly, which is directed at or pertaining to a targeted person; or
• Accesses, or attempts to access, the online account or internet-connected home electronic system without the specified person’s consent and that causes substantial emotional distress to the victim 

Stalking is an enhanceable offense, meaning certain forms of stalking are felonies and carry heavier criminal penalties under Florida law. For example:

• Someone who makes a credible threat to the victim in the course of stalking commits a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine
• Someone who stalks a victim 16 years old or younger commits a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine
• Someone who violates an existing injunction against stalking commits aggravated stalking, a third-degree felony punishable by up to 5 years in prison and a $5,000 fine

Note: A police officer may make a warrantless arrest of anyone they suspect of stalking based on probable cause.

Under Florida law, stalking must be done both willfully and maliciously. “Willfully” is defined as knowingly, intentionally, and purposely. “Maliciously” is defined as wrongfully, intentionally, and without lawful justification or excuse. Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007) 

In addition to stalking, there is aggravated stalking. Aggravated stalking includes the elements of stalking, but with the added requirement of making a credible threat to the victim, or violating an injunction for protection against violence. Ford v. State, 387 So.3d 1283 (Fla. 1st DCA 2024). 

Aggravated stalking is a third-degree felony punishable by up to 5 years in prison and a $5,000 fine. Moreover, under Florida Statutes Section 784.048, a court may issue an order restraining the defendant in an aggravated stalking case from contacting the victim for up to 10 years.

In addition to a criminal charge, someone may be subject to a stalking INJUNCTION. In Florida, an injunction is defined as a court order that is meant to compel a person to engage in, or refrain from engaging in, a particular course of conduct. 

There are two broad types of stalking injunctions – temporary injunctions and permanent (final) injunctions. A temporary injunction (also known as an ex parte injunction) can be entered before the respondent (e.g. the party accused of stalking) gets a full hearing. The process proceeds in the following way:

• The petitioner files a verified petition alleging stalking
• The judge reviews the petition – generally, the respondent does not have to be present
• If it appears that stalking exists, the court may issue a temporary injunction pending a full hearing
• Temporary injunctions ordinarily last no more than 15 days
• A full hearing must be scheduled no later than the date of expiration of the temporary injunction
• However, the hearing on the final injunction may be continued (e.g. delayed) for GOOD CAUSE, such as inability to obtain service on the respondent (and a temporary injunction may be extended accordingly)

A FINAL (or permanent injunction) must only issue after the respondent is given notice – and an evidentiary hearing occurs. At that hearing, both parties have the opportunity to:

• Testify
• Present witnesses and evidence
• Contest whether the statutory requirements for stalking have been established

Despite its name, a permanent (or final) injunction does NOT have to last forever. The injunction may be dissolved at the request of the party who sought it, or a reviewing Florida court finds that there was not a legally sufficient basis for its issuance. Touhey v. Seda, 133 So. 3d 1203 (Fla. 2d DCA 2014)

There are various types of stalking injunctions that may be issued, depending on the facts of the case. These include:

• Injunction for protection for domestic violence – Under Fla. Stat. 741.30, this may issue if the petitioner and respondent presently reside together, have lived together in the past in an intimate or family relationship, are related by blood/marriage OR share a child
• Injunction for protection from repeat violence – May be issued when a party proves that at least 2 instances of stalking and/or violence have been committed against them by the respondent in the last 6 months and the petitioner/respondent do not have a relationship qualifying them for a domestic violence injunction
• Injunction for protection from dating violence – requires that 1) the dating relationship existed within the last 6 months; 2) the nature of the relationship is characterized by the expectation of affection or sexual involvement between the parties; and 3) the frequency and type of interaction is based on the party’s involvement over time and on a continuous basis during the course of the relationship
• Injunction for sexual violence – requires a victim or parent of a victim to establish that 1) the petitioner has reported the alleged sexual violence to a law enforcement agency and is cooperating in any criminal proceeding against the respondent; and 2) the respondent who committed sexual violence was sentenced to a term of imprisonment in state prison, and the term of imprisonment has expired or is due to expire within 90 days following the date the petition is filed

Critically, if a petitioner seeks an injunction as a CIVIL REMEDY, they do not have to establish beyond a reasonable doubt that the respondent engaged in the above behavior(s). They must only show the prohibited conduct occurred by a preponderance (majority) of the evidence. Shannon v. Smith, 278 So.3d 173 (Fla. 1st DCA 2019)

For an injunction to issue, it must be shown that the conduct of the respondent would have led to an objectively reasonable person in the petitioner’s position experiencing substantial emotional distress. 

Substantial emotional distress goes beyond ordinary emotional distress – a petitioner will often allege that they have experienced symptoms that seriously disrupt their daily life, such as trouble sleeping, fear of going in public, suicidal ideation, and more. Garcia v. Soto, 337 So.3d 355 (Fla. 4th DCA 2022)

If an injunction is sought and there has been no allegation that the petitioner suffered substantial emotional distress (or that an objectively reasonable person in the petitioner’s position would’ve suffered substantial emotional distress, even if the petitioner was not personally in fear), there is NOT a legally sufficient basis for an injunction to issue.

This was made clear in a case surrounding a stalking injunction decided by Florida’s 2nd District Court of Appeal (Greater Tampa’s highest court). The petitioner (Jackson) alleged the respondent (Jones) engaged in “stalking” behavior. 

A hearing was held – and a permanent (final) injunction was ultimately entered. The respondent appealed, arguing that the judge did NOT have a legally sufficient basis to enter the injunction – because:

• The petitioner did not allege that he experienced substantial emotional distress, AND
• The petitioner did not allege that an objectively reasonable person in his position would have experienced substantial emotional distress, even if he did not experience it himself

The 2nd DCA AGREED with the respondent and REVERSED the issuance of the injunction on the basis that there was insufficient evidence to support the trial judge’s decision. One 2nd DCA judge concurred in an opinion that discussed when it is and is not appropriate to enter injunctions – even when a respondent’s behavior is obviously morally objectionable.

Let’s take a look at the case – Jones v. Jackson, 67 So.3d 1203 (Fla. 2d DCA 2011) – and discuss what it means for those involved in stalking injunction proceedings in Florida.

KEY CASE: Jones v. Jackson, 67 So.3d 1203 (Fla. 2d DCA 2011)

In Jones v. Jackson, 67 So.3d 1203 (Fla. 2d DCA 2011), the petitioner – Jackson – successfully sought an injunction for repeat violence against Jones. Jones appealed the injunction’s issuance. At the final hearing, the following facts were revealed:

• Jackson was divorcing his wife, and Jones was his wife’s new boyfriend
• During arguments relating to custody of the children, Jones sent texts and made multiple phone calls of a “threatening” nature to Jackson
• Jackson, however, testified that he did not suffer emotional distress and was “calm” after the conversations occurred
• Despite Jackson’s testimony, the judge entered a final injunction prohibiting Jones from contacting Jackson – concluding his communications were “violent” and did NOT serve a legitimate purpose (e.g. were made only to harass Jackson)

Appealing the final injunction, Jones asserted that the judge failed to conduct the required legal inquiry regarding substantial emotional distress. According to Jones, Jackson needed to allege:

• That he was substantially emotionally distressed by Jones’s conduct, OR
• That an objectively reasonable person would have been

Florida’s 2nd District Court of Appeal AGREED with Jones and TOSSED OUT the injunction – finding there was an insufficient legal basis for its issuance. The 2nd DCA majority wrote:

“Section 784.046 provides injunctive relief from repeat violence for “two incidents of violence or stalking.” Willful, malicious, and repeated harassment constitutes stalking. § 784.048(2). Mr. Jackson testified that he received threatening phone calls and text messages from Mr. Jones. However, these particular threats would not have caused a reasonable person substantial emotional distress. See § 784.048(1)(a) (defining “harassment” as “a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose”); Slack v. Kling, 959 So.2d 425, 426 (Fla. 2d DCA 2007) (utilizing the reasonable person standard to determine whether the petitioner suffered substantial emotional distress). In fact, the only evidence about Mr. Jackson’s emotional response was that he “was calm” after receiving one of the threats. His testimony supports our conclusion that the threats would not have caused a reasonable person in Mr. Jackson’s shoes to suffer substantial emotional distress. Therefore, Mr. Jones’s direct threats did not amount to harassment.”

Moreover, rejecting that Jones’s communications about Jackson to third parties were incidents of stalking, the 2nd DCA concluded:

“Mr. Jackson also testified that Mr. Jones made statements to third parties suggesting he would do violence to Mr. Jackson. Indirect contact can constitute harassment. … But, like the direct threats in this case, these statements would not have caused a reasonable person in Mr. Jones’s place to suffer substantial emotional distress. In summary, Mr. Jackson’s testimony failed to establish harassment because a reasonable person would not have suffered emotional distress from Mr. Jones’s threats or statements. Without harassment there was no proof of stalking, and without stalking there was no proof of “repeat violence.” Therefore, the trial court erred in granting the injunction for protection against repeat violence. Reversed.”

Judge Alterbrend wrote a concurring opinion. In it, he noted that it would be a “very good idea” for Jones and Jackson to “leave each other alone,” but that an injunction was not the appropriate remedy:

“Without question it would be a very good idea for these two men to leave one another alone. It helps to understand that, at the time of this hearing, Mr. Jones was living with Mr. Jackson’s “soon-to-be ex-wife.” Their disagreements seem to have arisen primarily when Mr. Jackson was trying to talk with his wife on the telephone about their child. The two men’s versions of events are diametrically opposed, and it appears that the woman in the middle does not want to take sides. The order on appeal is a form order in which the trial court grants the injunction without findings of fact. The trial judge made no findings of fact on the record, although it is obvious that he believed Mr. Jackson and did not believe Mr. Jones. Overall, the testimony suggests that Mr. Jackson is tired of Mr. Jones’ profanity and the idle verbal threats, but he does not actually fear that Mr. Jones is planning to act on the threats. … It might occasionally be helpful if the circuit courts had the power to enter an order requiring adults to act like grownups. But a permanent injunction for protection against repeat violence cannot be used simply to compel civility and common decency.”

In sum, Jones v. Jackson, 67 So.3d 1203 (Fla. 2d DCA 2011) marks a significant development in Florida’s corpus of case law surrounding injunctions for stalking, repeat violence, and more. The 2nd DCA (Greater Tampa’s highest court) held that:

• There was no evidence Jackson suffered substantial emotional distress as a result of the threats made by Jones, nor evidence that an objectively reasonable person would have 
• The trial judge thus erred by entering the injunction
• Accordingly, the injunction was TOSSED OUT

Judge Alterbrend wrote a concurring opinion – criticizing the judge for failing to make specific findings of fact on the record, and ultimately concluding that Jones’s misbehavior was a breach of “civility and common decency” rather than a violation of Florida law.

Florida’s criminal defense community should take note of Jones v. Jackson, 67 So.3d 1203 (Fla. 2d DCA 2011), as it makes clear when injunctions may (or may not) issue based on the presence (or lack) of substantial emotional distress suffered by the petitioner.

If someone is charged with stalking or aggravated stalking, it is critical to find experienced and trusted legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term, hefty fines, and depending on the nature of the abuse, whether they are required to register as a sex offender for the rest of their life.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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