North FL’s Highest Court REVERSES Stalking Injunction: “No Substantial Emotional Distress”

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

Florida’s 1st District Court of Appeal found a trial judge erred by entering a stalking injunction against a respondent, as his conduct did not cause the petitioner substantial emotional distress.

CASE: Shannon v. Smith, 278 So.3d 173 (Fla. 1st DCA 2019)

Charge(s): Stalking

Outcome: Injunction TOSSED OUT, as the petitioner failed to allege the respondent’s activities caused “substantial emotional distress” – thus, there was no stalking.

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: An 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 the criminal penalties that are likely to accompany a stalking and/or aggravated stalking conviction, someone may face ramifications in CIVIL proceedings as well. A petitioner may file for a stalking injunction, which prohibits the respondent (if granted) from continuing to engage in the alleged objectionable behavior.

There are TWO TYPES of stalking injunctions – temporary 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) receives a full hearing. The injunction 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)

Before a permanent injunction can be granted, the respondent must receive notice and is entitled to an evidentiary hearing. At that hearing, both parties will have the chance to:

• Testify regarding the facts of the case
• Present witnesses and evidence
• Contest whether the statutory requirements for a finding of stalking have been met

It is important to recognize that the burden of proof is not the same in civil and criminal stalking proceedings. The difference is as follows (Garcia v. Soto, 337 So.3d 355 (Fla. 4th DCA 2022))

• For a stalking/repeat violence/dating violence injunction to issue, the petitioner (the party making the allegation) must establish by a preponderance (majority) of the evidence that the respondent’s behavior constitutes stalking/aggravated stalking/repeat violence and/or dating violence under Florida law
• For someone to be CRIMINALLY CONVICTED of stalking/aggravated stalking and/or violation(s) of an injunction relating to any of the above forms of stalking or violence, the State must prove BEYOND A REASONABLE DOUBT that the defendant is guilty

A key aspect of Florida’s stalking law is that the petitioner (or the State, depending on if a person is facing a civil allegation or criminal charges) must allege the respondent’s conduct caused them SUBSTANTIAL EMOTIONAL DISTRESS. 

Though substantial emotional distress is not formally defined under state law, Florida courts have consistently recognized that the emotional distress experienced by a victim must be “greater than an ordinary feeling of distress.” O’Neill v. Goodwin, 195 So.3d 411 (Fla. 4th DCA 2016)

Moreover, courts use an OBJECTIVE standard to evaluate whether a petitioner or alleged victim experienced substantial emotional distress. Testimony of an accuser, standing alone (e.g. a claim that substantial emotional distress was experienced, without more) is legally insufficient for this element to be satisfied.

For example, a petitioner cannot credibly claim stalking occurred if the respondent simply made rude comments to them while in public on multiple occasions. 

Even if these comments caused a petitioner “substantial emotional distress” on a personal level, a court would likely find that level of emotional distress to be objectively unreasonable, given the nature of the respondent’s conduct. Thus, a stalking injunction would be very unlikely to issue.

By contrast, if the petitioner engages in far more aggressive and dangerous behavior (e.g. making serious threats on a victim’s life that a reasonable victim would find credible), a court would be much more likely to conclude the petitioner suffered substantial emotional distress – and thus, an injunction would almost certainly issue (if the remaining elements of stalking were proven).

But where is the line drawn between conduct that is likely to cause substantial emotional distress – and conduct that, as a matter of law, DOES NOT? This question was answered by Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court) in a major case.

There, the petitioner filed for a stalking injunction after the respondent engaged in a pattern of conduct that did not appear to serve any “legitimate” (e.g. non-harassment) purpose. 

A hearing was conducted, and the judge ultimately chose to issue a permanent injunction against the respondent. He chastised the respondent for his “aggressive conduct” in doing so. The judge entered the final injunction after rejecting the respondent’s argument that even if his conduct was unjustified, it was not likely to cause substantial emotional distress in a reasonable person.

Appealing the entry of the final injunction, the respondent argued to the 1st DCA that the judge erroneously found that he “stalked” the petitioner, despite a total lack of evidentiary support for the conclusion that his conduct was likely to cause substantial emotional distress. Accordingly, he urged the 1st DCA to THROW OUT the injunction.

The 1st DCA AGREED with the respondent and REVERSED the trial judge’s ruling – throwing out the stalking injunction on the basis that there was an insufficient legal basis for its issuance.

Let’s take a look at that case – Shannon v. Smith, 278 So.3d 173 (Fla. 1st DCA 2019) – and see what it means for those in Florida concerned about injunctions against stalking, repeat violence and/or domestic violence injunction proceedings.

KEY CASE: Shannon v. Smith, 278 So.3d 173 (Fla. 1st DCA 2019)

In Shannon v. Smith, 278 So.3d 173 (Fla. 1st DCA 2019), the petitioner (Smith) successfully obtained a stalking injunction against the respondent (Shannon). Shannon appealed the issuance of the injunction to the 1st DCA. At the final injunction hearing, the following was revealed:

• Shannon allegedly stole yard signs from Smith’s neighborhood in 2017, and a short time thereafter, sent Smith an email that read: “Blow me”
• A separate incident occurred a few months later, where Shannon allegedly put flyers in Smith’s “flyer box”
• Weeks later, additional yard signs were stolen from Smith
• Over the next year, other incidents occurred – including another alleged sign-stealing by Shannon
• Shannon was alleged to have sent more profane emails and engaged in at least one verbal altercation with Smith during an HOA meeting that was described as “heated”
• Smith ultimately filed for an injunction, claiming that he and his child were stalked (since Smith’s child was present at the HOA meeting during the argument with Shannon)

At the final (permanent) injunction hearing, Smith was questioned by a judge about what specific behavior Shannon engaged in that rose to the level of stalking under Florida law. The following evidence/testimony was then elicited:

“Appellee testified about Appellant stealing, throwing, and damaging signs in the neighborhood that pertained to a lawsuit that some neighbors, including Appellee, were involved in against a home builder, and about Appellant chasing him down the street while yelling profanities. Appellee acknowledged that the email to his employer that he relied upon in his petition was sent from an anonymous Gmail account and that it was possible that another neighbor who opposed the lawsuit could have sent it. A video was played of the HOA meeting during which Appellant and Appellee had a verbal altercation. A second video was also played of an encounter Appellant had with another neighbor elsewhere in the neighborhood. After the trial court asked Appellant whether the language he used at the HOA meeting was an appropriate or nice thing to do, in response to which Appellant acknowledged it was not, the trial court stated, “Well, it may not arise to a criminal; however, based upon the videos I have seen, they were aggressive in nature and the Court is going to enter an order of injunction prohibiting [Appellant] from having any contact with [Appellee] or his family.”

Appealing the judge’s ruling to the 1st DCA, Shannon argued that a finding that his conduct was “aggressive” in nature was insufficient, as a matter of law, for substantial emotional distress to be established. In fact, Shannon observed, there was NO testimony provided by Smith AT ALL on the issue of whether he was emotionally distressed (let alone substantially) by Shannon’s actions.

Agreeing with Shannon on this point, the 1st DCA REVERSED the judge’s ruling and TOSSED OUT the final injunction. Discussing the evidence, the 1st DCA observed:

“Based upon the hearing transcript, the trial court entered the stalking injunction because of what it considered to be Appellant’s aggressive behavior toward Appellee at the HOA meeting and toward a different neighbor on another occasion. However, whether Appellant was verbally aggressive toward someone other than Appellee has no bearing on whether he stalked Appellee. Moreover, a verbal altercation between two neighbors during an HOA meeting in no way warrants the entry of an injunction against stalking. The same can be said of the other incidents relied upon by Appellee in his petition, some of which Appellee himself described as being petty. As for the July 2018 anonymous email that was sent to Appellee’s employer, Appellee acknowledged below that another person could have sent it.”

Noting that Shannon’s “petty” conduct was insufficient to support the issuance of an injunction against stalking as a matter of law due to a lack of evidence of substantial emotional distress, the 1st DCA wrote:

“In addition, Appellant correctly argues that Appellee provided no testimony that any of Appellant’s actions caused him substantial emotional distress. As we have explained, the substantial emotional distress that is necessary to support a stalking injunction is greater than just an ordinary feeling of distress. Venn v. Fowlkes, 257 So. 3d 622, 624 (Fla. 1st DCA 2018). While the anonymous email sent to Appellee’s employer and Appellant’s behavior at the HOA meeting may have frustrated and embarrassed Appellee, and rightfully so, embarrassment does not equate to substantial emotional distress. … Appellant is also correct that the evidence failed to establish stalking as to Appellee’s minor child. Even if the child were present during the HOA meeting and unfortunately heard from Appellant what the trial court described as inappropriate language, that incident would not constitute stalking warranting an injunction. In conclusion, although we in no way condone any of Appellant’s actions or his behavior, we must reverse the injunction for the reasons set forth herein.”

In sum, Shannon v. Smith, 278 So.3d 173 (Fla. 1st DCA 2019) marks a significant development in Florida’s corpus of case law regarding the issuance of stalking injunctions in Florida. The 1st DCA (Tallahassee and North FL’s highest court) held that:

• Smith failed to make an allegation in his petition/the injunction hearing that Shannon’s conduct caused him “substantial emotional distress” (or would have caused substantial emotional distress to a reasonable person)
• Shannon’s conduct was petty and even aggressive, but it did NOT constitute stalking as a matter of law 
• This required REVERSAL of the stalking injunction barring Shannon from contact with Smith and his family members

Florida’s criminal defense community should take note of Shannon v. Smith, 278 So.3d 173 (Fla. 1st DCA 2019), as it makes clear when substantial emotional distress is (AND IS NOT) established for stalking injunction purposes.

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.

  Social Share