North FL’s Highest Court Issues Major Decision On Stalking Injunction Law, One Judge Dissents

September 28, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 1st District Court of Appeal held that for an injunction against repeat violence to issue, a petitioner must only prove one instance of “stalking.” One 1st DCA judge did not agree.

CASE: Lukacs v. Luton, 982 So.2d 1217 (Fla. 1st DCA 2008)

Charge(s): Repeat Violence Injunction

Outcome: Injunction affirmed, as the judge concluded rightly that a respondent must only stalk a petitioner once for that petitioner to be eligible for an injunction against repeat violence. 

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)

Note: A final hearing will be scheduled regardless of whether a temporary injunction is issued. Just because someone does not initially prevail when seeking an injunction does not mean they will lose at the final hearing. The opposite is also true – a petitioner may successfully request a temporary injunction, only for a final injunction not to issue. 

In the event that a final hearing is held on an injunction, the petitioner and respondent will have a chance to do all of the following:

• Testify as to the occurrence and/or nonoccurrence alleged events leading to the pursuit of the injunction
• Present witnesses to corroborate their accounts
• Introduce evidence in the form of exhibits

It is important to understand that the burden of proof differs at a civil injunction hearing from a criminal trial. The distinction is as follows:

• At a civil injunction hearing, the petitioner must prove by a PREPONDERANCE of the evidence (majority of the evidence) that the respondent engaged in stalking and/or other prohibited behavior allowing for the issuance of an injunction
• At a criminal trial, the State must establish BEYOND A REASONABLE DOUBT that a defendant committed each and every element of the charged offenses (Shannon v. Smith, 278 So.3d 173 (Fla. 1st DCA 2019))

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, the following issues are usually raised and will inform a judge’s legal analysis prior to rendering a decision:

• Whether the respondent engaged in more than one course of conduct (e.g. a single act is NOT stalking as a matter of law, at least two individual acts are not required)
• Whether the respondent’s behavior was willful and malicious, and lacked any legitimate purpose (e.g. purpose other than harassment of the petitioner)
• Whether a reasonable person in the petitioner’s position would be likely to experience substantial emotional distress as a result of the respondent’s conduct (Power v. Boyle, 60 So.3d 496 (Fla. 1st DCA 2011))

Important: “Willfully” means intentionally, knowingly, and purposely. “Maliciously” means wrongfully, intentionally, without legal justification or excuse, and with knowledge that injury or damage will or may be caused to another person or property. Quinn v. State, 288 So. 3d 657, 660 (Fla. 4th DCA 2020)

It is a common belief that there is no way to set aside a permanent injunction if one is issued. But this is not true. A permanent injunction may be tossed out if any of the following occur:

• The petitioner OF THEIR OWN FREE WILL moves the court to set aside the injunction, arguing that they are no longer in fear of the respondent/that circumstances have changed, etc.
• The respondent moves the court to set aside the injunction, arguing that the circumstances that led to its issuance are no longer relevant/applicable (Hobbs v. Hobbs, 290 So.3d 1092 (Fla. 1st DCA 2020))
• A reviewing court, such as a Florida District Court of Appeal, finds that the judge erred as a matter of law by issuing the injunction because the evidence was insufficient

In one major case surrounding an injunction against REPEAT VIOLENCE, Florida’s 1st District Court of Appeal (Tallahassee and North Florida’s highest court) was tasked with interpreting the state’s injunction statute. 

There, the petitioner accused the respondent of engaging in at least two, but fewer than four, acts that led her to fear imminent violence. The respondent argued that the petitioner was required to provide evidence of FOUR acts of willful/malicious harassment for her to be eligible to receive an injunction against repeat violence.

The respondent claimed that Fla. Stat. Sec. 784.046(1)(b) required “two incidents of violence or stalking committed by the respondent.” The respondent interpreted this to mean two incidents of violence and/or two of stalking, NOT two incidents of violence and/or one incident of stalking – which itself would require at least two willful and malicious acts.

Put simply, if the respondent were correct, the petitioner would be required to show at least four acts of harassment for a repeat violence injunction to issue – not two. 

Despite this argument, the trial judge concluded that for an injunction against repeat violence to be issued, the petitioner had to only establish ONE course of conduct qualifying as stalking, not two. As a result, the petitioner received the injunction against repeat violence.

On appeal to the 1st DCA, the respondent argued the judge’s interpretation should be rejected. He claimed that the statute required evidence of TWO distinct courses of conduct constituting “stalking” for the injunction to issue, not just one.

The 1st DCA REJECTED this claim and AFFIRMED the lower court’s decision. However, one 1st DCA judge dissented and sided with the respondent.

Let’s look at the case – Lukacs v. Luton, 982 So.2d 1217 (Fla. 1st DCA 2008) – and see what it means for those in Florida seeking or responding to an injunction against repeat violence.

KEY CASE: Lukacs v. Luton, 982 So.2d 1217 (Fla. 1st DCA 2008)

In Lukacs v. Luton, 982 So.2d 1217 (Fla. 1st DCA 2008), the petitioner (Luton) alleged that the respondent (Lukacs) had stalked her and placed her in imminent fear of violence. At the hearing, the following was revealed:

• Luton claimed that Lukacs had followed her home from work and harassed her the next day at her workplace 
• This was sufficient to allege ONE incident of stalking – as there were two instances of harassment 
• Lukacs moved to dismiss the Luton’s petition for an injunction against repeat violence on the basis that she failed to allege two incidents of stalking (each of which require at least two instances of harassment)
• The judge DISAGREED with Lukacs and interpreted the statute to require only a single incident of stalking to be alleged, not multiple
• Ultimately, the injunction was issued

On appeal, Lukacs argued that the trial judge misinterpreted the injunction statute in concluding that a single incident of stalking could serve as the basis for an injunction against repeat violence (assuming the other elements are satisfied).

The 1st DCA majority REJECTED Lukacs’ claim and AFFIRMED the lower court’s decision to issue the injunction. The 1st DCA majority wrote:

“Before addressing the relevant canons of statutory construction, we first note that in the operative phrase of section 784.046(1)(b), the adjective “two” is placed immediately before the noun phrase “incidents of violence,” and not before the word “stalking.” If the legislature intended to require “two incidents of stalking,” it could have easily said so by simply writing the definition of repeat violence to read, “ ‘Repeat violence’ means two incidents of violence, or two acts of stalking,….” More significantly, in order to agree with Appellant’s position, we must assume the legislature meant that a person would be allowed to stalk a victim twice before an injunction for repeat violence could be issued. As noted above, however, such a reading is contrary to the decisions which recognize that a person can only commit one act of stalking through repeated acts. See Eichelberger, 949 So.2d at 360–361;  Marinelli, 706 So.2d at 1375. Under Appellant’s proposed definition of stalking, it is practically impossible for a court reviewing a request for a protective injunction to find that a person stalked a victim twice. Thus, were we to interpret the phrase “two incidents of violence or stalking” as requiring that two incidents of stalking occurred, this would result in the essential elimination of this cause of action for a protective injunction.”

Finding that interpreting the statute in the manner Lukacs advocated would produce an “absurd” result, the majority concluded:

“Despite our view to the contrary, because the statutory text could be plausibly read to require two incidents of stalking, the statute could be considered ambiguous; therefore, we must apply the relevant rules of statutory construction to determine legislative intent. See Maddox v. State, 923 So.2d 442, 445–446 (Fla.2006). In Maddox, the Florida Supreme Court reversed this court’s decision interpreting a statute as unambiguous, noting that in order to ensure that legislative intent prevails, a statute must be read as a whole and related statutes must be considered together. Id. This is true even where the “evident intent is different from the literal import of the terms employed to express it….” Id. (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla.1992)). The court rejected literal statutory interpretations that produce absurd results. We think this principle applies here. To adopt the view of Appellant would lead to the absurd result of requiring stalking victims to show that they twice suffered from repeated harassment or following before obtaining a protective injunction. Were we to adopt such an interpretation, Appellant could have threatened or followed Appellee four times before the circuit court could issue a protective injunction. In addition, such a result is contrary to clearly established public policy, enacted three years before the legislature added the phrase “or stalking” to the repeat violence statute.”

Notably, one 1st DCA judge DISSENTED. Judge Davis of the 1st DCA believed that the statute should have been read in the manner advocated by Lukacs, writing:

“Because I conclude that the issuance of an injunction for protection against repeat violence requires more than one incident of stalking, I respectfully dissent. It is important to note that the definition of “violence” includes stalking. See § 784.046(1)(a), Fla. Stat. (2006). It is also important to note that the Legislature did not create a cause of action for an injunction for protection against violence. Rather, it created a cause of action for an injunction for protection against repeat violence. See § 784.046(2), Fla. Stat. (2006). “Repeat violence” is defined 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.” See § 784.046(1)(b), Fla. Stat. (2006) (emphasis added). Had the Legislature defined “repeat violence” as “two incidents of violence committed by the respondent, one of which much have been within 6 months of the filing of the petition, or one incident of stalking, which must have been within 6 months of the filing of the petition,” I could have agreed with the majority’s interpretation of the statute. However, by inserting “or stalking” where it did, after the phrase “two incidents of violence” but before the phrases “one of which” and “which are,” the Legislature obviously intended that two incidents of stalking are necessary for the issuance of a repeat violence injunction. … Accordingly, I would reverse the injunction.”

However, Judge Davis’s opinion did not win the day. As a result, the issuance of the injunction was affirmed.

In sum, Lukacs v. Luton, 982 So.2d 1217 (Fla. 1st DCA 2008) marks a significant development in Florida’s corpus of case law surrounding the interpretation of Florida’s injunction laws. The 1st DCA (Tallahassee and North FL’s highest court) held that:

• It would be absurd for the legislature to have required that four instances of harassing behavior be shown before a repeat violence injunction could issue
• Moreover, the statute does not expressly require two incidents of stalking to be proven
• As a result, the trial judge’s interpretation was CORRECT, requiring affirmance of his decision

Judge Davis of the 1st DCA dissented, arguing that by constructing the statute in the way it did, the legislature did intend for multiple incidents of stalking to be proven before a repeat violence injunction could issue.

Florida’s criminal law community should take note of Lukacs v. Luton, 982 So.2d 1217 (Fla. 1st DCA 2008) – as it makes clear that only ONE incident of stalking must be shown in Tallahassee and North Florida before an injunction may issue.

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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