North FL’s Highest Court Finds Respondent Sending Flowers & Balloons Was Not Stalking

September 21, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 1st District Court of Appeal held that a respondent sending a petitioner balloons and flowers on “several occasions” did not rise to the level of stalking.

CASE: McMath v. Biernacki, 776 So.2d 1039 (Fla. 1st DCA 2001)

Charge(s): Stalking Injunction

Outcome: Injunction SET ASIDE, as the respondent’s conduct did not rise to the level of stalking as a matter of law.

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. 

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 permanent injunction is pursued, both parties to the case (e.g. petitioner and respondent) will have the chance to do the following at the final hearing:

• Testify as to the occurrence or non-occurrence of the alleged “stalking”
• Call witnesses to corroborate their claims
• Present relevant evidence, including physical evidence (if necessary)

It is important to note that the BURDEN OF PROOF is not the same at a civil injunction hearing as it is at a criminal trial. The differences is as follows:

• In a criminal case, the State must prove BEYOND A REASONABLE DOUBT that the defendant committed each and every element of the offense(s) charged
• At a civil injunction hearing (e.g. a petitioner pursuing an injunction), the petitioner must establish by a PREPONDERANCE (majority) of the evidence that a respondent engaged in stalking, dating/repeat/domestic violence, etc.  (Shannon v. Smith, 278 So.3d 173 (Fla. 1st DCA 2019)

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

At a final injunction hearing, there are typically three legal issues that may be in dispute. In some cases, only one or two are discussed. These include:

• Whether the respondent engaged in at least two incidents of behavior that were designed to harass the petitioner
• Whether the respondent’s conduct had a LEGITIMATE purpose (narrowly defined as a purpose other than harassment of the petitioner)
• Whether the respondent’s conduct was likely to cause SUBSTANTIAL emotional distress to an OBJECTIVELY REASONABLE person in the petitioner’s shoes (Hobbs v. Hobbs, 290 So.3d 1092 (Fla. 1st DCA 2020))

Critically, the fact that a final injunction is issued does NOT mean it is guaranteed to last forever. An injunction may be dissolved if any of the following occur:

• The petitioner moves to dissolve the injunction, claiming that they are no longer in fear of the respondent/do not wish to have it in effect any longer
• The respondent moves the court to dissolve the injunction, arguing that the circumstances surrounding the injunction have changed enough to render the injunction obsolete
• A reviewing court (e.g. a Florida District Court of Appeal) finds there was insufficient evidence to support the issuance of the injunction and sets it aside (Leach v. Kearsey, 162 So.3d 1104 (Fla. 2d DCA 2015))

The last of these occurred in a case heard by Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court). There, a respondent was alleged to have sent flowers and balloons to a petitioner on various occasions. 

The respondent also wrote the petitioner a letter indicating interest in a romantic relationship, but his love was unrequited. These events led the petitioner to pursue an injunction – and at the final hearing, she argued the following:

• The communications/flowers and balloons had no legitimate purpose and were designed to harass her
• There were multiple instances of conduct
• She suffered substantial emotional distress

The judge agreed with the petitioner that she was entitled to an injunction for protection against repeat violence. However, upon review, the 1st DCA REVERSED the trial judge’s finding and tossed out the injunction.

Let’s take a look at the case – McMath v. Biernacki, 776 So.2d 1039 (Fla. 1st DCA 2001) – and see what it means for those involved in injunction proceedings in Florida.

KEY CASE: McMath v. Biernacki, 776 So.2d 1039 (Fla. 1st DCA 2001)

In McMath v. Biernacki, 776 So.2d 1039 (Fla. 1st DCA 2001), the petitioner (Biernacki) alleged she had been the victim of McMath’s “repeat violence.” At the final hearing, the following facts were revealed:

• McMath wrote Biernacki a letter within 6 months of her initial reporting of McMath to law enforcement
• He also sent Biernacki multiple orders of flowers and balloons at her home
• Biernacki argued to the judge that she was in imminent fear of violence, as she’d reported McMath to law enforcement previously and he was engaged in conduct that was designed exclusively to harass her
• She also claimed she experienced substantial emotional distress and reasonably feared that violence would occur without an injunction
• The judge agreed and issued an injunction against repeat violence

McMath APPEALED the judge’s decision to the 1st DCA. He argued that the conduct Biernacki alleged was NOT likely to put a reasonable person in imminent fear of violence, nor lead them to experience substantial emotional distress.

The 1st DCA AGREED with McMath and set aside the injunction. A unanimous 1st DCA wrote the following:

“The two incidents cited by the appellee in her petition for injunction do not meet the statutory definition of repeat violence. She lists the receipt of a letter from the appellant as one incident occurring within six months of her petition. The second incident is her report to a police officer that, on several occasions, the appellant sent her flowers and balloons. These incidents do not show that the appellee had a well-founded fear that violence was imminent. See Johnson v. Brooks, 567 So.2d 34 (Fla. 1st DCA 1990). The appellee admits that the appellant never threatened her. Additionally, neither of these incidents involved an assault, battery, or sexual battery; therefore, the incidents must meet the definition of stalking to qualify as repeat violence. The record is devoid of any evidence that the incidents constituted stalking. No evidence exists in the record that a reasonable person would suffer substantial emotional distress from these incidents. The record reveals that the appellee does not feel comfortable around the appellant.”

“In response to why the appellee was afraid of the appellant, the appellee stated that the appellant did not understand her and had made several attempts to talk to her. While these attempts may cause subjective distress to the appellee, there is no competent, substantial evidence that the attempts to talk to the appellee would cause a reasonable person to suffer any emotional distress. Thus, no statutory basis exists for granting injunctive relief based on the incidents cited in the appellee’s petition. No competent, substantial evidence exists that the appellee suffered repeat acts of violence. REVERSED.”

Put simply, the 1st DCA found Biernacki’s subjective discomfort regarding McMath’s conduct did NOT provide the “competent, substantial” evidence necessary to support the issuance of the injunction.

In sum, McMath v. Biernacki, 776 So.2d 1039 (Fla. 1st DCA 2001) marks a major development in Florida’s corpus of case law surrounding stalking injunctions. The 1st DCA (Tallahassee and North FL’s highest court) held that:

• The evidence did NOT warrant the issuance of an injunction for repeat violence against McMath
• McMath sent letters, flowers, and balloons to Biernacki – and also approached her in an attempt to court her, to no avail
• This was insufficient to support a claim that Biernacki had an objectively reasonable fear of violence at the hands of McMath
• There was also insufficient evidence that an objectively reasonable person in her position would have experienced substantial emotional distress
• This required the injunction to be set aside

Florida’s legal community should take note of McMath v. Biernacki, 776 So.2d 1039 (Fla. 1st DCA 2001), as it makes clear when the evidence presented at a final hearing is legally sufficient (and insufficient) to support the issuance of an injunction in Tallahassee and North Florida.

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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