Major FL Court TOSSES OUT Stalking Injunction in Neighborhood Dispute… Find Out Why

October 15, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 3rd District Court of Appeal ruled that there was an insufficient legal basis for a trial judge to conclude the petitioner was stalked by the respondent. 

CASE: Richards v. Gonzalez, 178 So.3d 451 (Fla. 3d DCA 2015)

Charge(s): Stalking Injunction

Outcome: Injunction TOSSED OUT, as there was insufficient evidence as a matter of law that Richards stalked Gonzalez – thus, a stalking injunction should never have been issued.

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. 

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 (e.g. to stay away from a person).

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)

If a petitioner files for a temporary injunction, there are three potential outcomes when a judge reviews the petition:

• The judge DENIES the request for a temporary injunction and does NOT schedule a final hearing, as the allegations are facially insufficient for an injunction
• The judge DENIES the request for a temporary injunction but SCHEDULES a hearing to determine whether a permanent injunction should issue
• The judge GRANTS the petition for a temporary injunction and schedules a hearing with the intent of determining whether the injunction should become permanent

It is important to note that a final injunction sometimes has an expiration date. A trial judge may issue an injunction that will last forever unless it is dissolved – or may temporally limit it (e.g. 1 year, 3 years, 5 years), depending on the facts of the case.

Even if an injunction is issued, this DOES NOT mean it is guaranteed to last forever. Injunctions may be set aside for any of three primary reasons, which include the following:

• The petitioner moves OF THEIR OWN FREE WILL to set aside the injunction, arguing they are no longer in fear of the respondent and thus, the injunction is not necessary
• The RESPONDENT moves to set aside the injunction on the basis that the circumstances surrounding the initial issuance of the injunction are no longer applicable/relevant (Hobbs v. Hobbs, 290 So.3d 1092 (Fla. 1st DCA 2020))
• A reviewing court, such as a Florida District Court of Appeal, sets aside an injunction on the basis that there was insufficient evidence to support its issuance in the first place

In the event that a final hearing occurs, each party will have the opportunity to do the following at that hearing:

• Testify regarding the alleged occurrence/nonoccurrence of the events in question
• Offer exhibits in support of their arguments
• Call witnesses, if necessary

Critically, the burden of proof at a civil injunction hearing is NOT the same as it is at a criminal trial. The difference is the following:

• At a criminal trial, the State must establish that the defendant committed each and every element of the offense(s) charged BEYOND A REASONABLE DOUBT
• At an injunction hearing, the petitioner must establish by a preponderance of the evidence (e.g. majority of the evidence) that the respondent engaged in stalking or violent conduct that is prohibited under Florida law (Power v. Boyle, 60 So.3d 496 (Fla. 1st DCA 2011))

There are various types of injunctions that may be issued in Florida – 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

At a stalking injunction hearing, there are normally a few legal issues that are debated, although certain facts may be stipulated to. These include:

• Whether the respondent’s conduct was REPEATED
• Whether the respondent’s conduct was willful and malicious
• Whether the respondent’s conduct had/did not have a legitimate purpose (e.g. aside from harassing a petitioner, per Khan v. Deutschman, 282 So.3d 965 (Fla. 1st DCA 2019))
• Whether the respondent’s conduct was likely to cause an objectively reasonable person in the petitioner’s position to suffer SUBSTANTIAL emotional distress

Note: For purposes of stalking, substantial emotional distress connotes an unjustifiable infliction of stress of great proportion, in the nature of “fear and concern.” Kaye v. Wilson, 363 So.3d 1155 (Fla. 2d DCA 2023)

Many of these legal issues were addressed in a ruling on a stalking injunction issued by Florida’s 3rd District Court of Appeal (Miami FL’s highest court). There, one next-door neighbor filed for a stalking injunction against the other, alleging that he’d made various credible threats, including threats involving firearms.

At the final injunction hearing, the parties yelled over each other consistently. Moreover, despite the petitioner’s claim that the respondent engaged in violent behavior towards her and her family, there was no evidence introduced of this. Nevertheless, a trial judge issued a four-year injunction against “stalking violence” against the respondent.

The respondent appealed, arguing there was insufficient evidence as a matter of law presented by the petitioner to support the issuance of an injunction. The 3rd DCA AGREED with him and set aside the “permanent” (4-year) injunction that the judge ordered.

Let’s take a look at that case – Richards v. Gonzalez, 178 So.3d 451 (Fla. 3d DCA 2015) – and see what it means for those in Florida concerned about injunction hearings.

KEY CASE: Richards v. Gonzalez, 178 So.3d 451 (Fla. 3d DCA 2015)

In Richards v. Gonzalez, 178 So.3d 451 (Fla. 3d DCA 2015), the petitioner (Gonzalez) sought a permanent injunction for stalking against Richards. In Gonzalez’s initial petition, the following things were alleged:

• Richards threatened to harm members of her family
• Richards had used guns and/or knives in his threats to her
• Richards had destroyed personal property of hers, including communication equipment, clothing, and/or other belongings
• Richards jumped in front of her vehicle to harass her, threw a full water bottle at the car, and ran away – which Gonzalez claimed was on video
• Richards climbed onto his shed roof, operated a pressure cleaner, stared at Gonzalez and her guests while they were outside their home, and laughed at them
• Richards threw garbage across the property line and taunted her

A temporary injunction was granted. But at the final hearing for a permanent stalking injunction, there were evidentiary issues – including:

• No evidence of Richards ever using or threatening to use weapons
• No evidence of property destruction
• Mixed testimony regarding the water bottle incident (including from Gonzalez’s son, who called it into question) – and no physical evidence
• No video evidence of the water bottle incident, despite the fact that Gonzalez claimed this existed

Nevertheless, the judge issued a 4-year “injunction against stalking violence” against Richards. This prompted an appeal, in which Richards argued that the evidence was INSUFFICIENT as a matter of law to support the injunction.

The 3rd DCA AGREED with Richards and TOSSED OUT the injunction. Addressing Florida’s  stalking law first, the 3rd DCA wrote:

“Stalking is the willful, malicious, and repeated following, harassing, or cyberstalking of another person. § 784.048(2), Fla. Stat. (2014). “ ‘Harass’ means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” § 784.048(1)(a); see also § 784.048(1)(b) (defining “ ‘[c]ourse of conduct’ ” as “a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose”). “Courts apply a reasonable person standard, not a subjective standard, to determine whether an incident causes substantial emotional distress.” Touhey v. Seda, 133 So.3d 1203, 1204 (Fla. 2d DCA 2014) (internal quotation marks omitted). In order to define “repeated following, harassing, or cyberstalking,” guidance can be derived from section 784.046, Florida Statutes (2014), which defines repeat violence as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(1)(b); Wyandt v. Voccio, 148 So.3d 543, 544 (Fla. 2d DCA 2014). “Each incident of stalking must be proven by competent, substantial evidence to support an injunction against stalking.” Touhey, 133 So.3d at 1204 (emphasis provided).”

Applying the law to the facts of the case at bar, the 3rd DCA concluded there was not competent, substantial evidence to support the injunction – writing:

 “There is a substantial disparity between the testimony at trial and the allegations in Ms. Gonzalez’s petition. There was no proof that Mr. Richards used, or threatened to use, any weapons such as guns or knives against Ms. Gonzalez. There was no proof that Mr. Richards destroyed “personal property, including, but not limited to, telephones or other communication equipment, clothing, or other items” belonging to Ms. Gonzalez.”

“There was no reported damage to Ms. Gonzalez’s car. There was no testimony that the alleged plastic water bottle was thrown at a window of the car. No bottle was found by Ms. Gonzalez, though she testified that Mr. Richards immediately hopped in his car and sped away after the alleged incident. … Applying the requirements of sections 784.048 and 784.0485, Florida Statutes (2014), and the “reasonable person standard” to the conduct described at the final hearing (as opposed to the petition), we are constrained to reverse the final judgment and vacate the injunction.”

Put simply, the conduct described and proven by Gonzalez at the FINAL HEARING was NOT stalking as a matter of law. This required the injunction to be set aside.

In sum, Richards v. Gonzalez, 178 So.3d 451 (Fla. 3d DCA 2015) is a significant development in Florida’s corpus of case law surrounding stalking injunctions. The 3rd DCA (Miami FL’s highest court) held that:

• The allegations Gonzalez made in her petition would’ve supported a permanent stalking injunction being issued
• However, those allegations were NOT proven by competent and substantial evidence at the final hearing
• The petition alone could NOT serve as the basis for the injunction
• As a result, the stalking injunction was set aside

Florida’s legal community should take note of Richards v. Gonzalez, 178 So.3d 451 (Fla. 3d DCA 2015), as it makes clear that facially sufficient stalking allegations in a PETITION cannot serve as the basis for a permanent injunction, if they are not proven at a final hearing.

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 more.

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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