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Written Threat Crimes in Florida

When you hear the term “written threat” you might think of a nastily worded letter promising some type of harm or ill-will. However, in Florida, “written threats” encompasses any type of communication, whether on paper or electronic, conveying a threat to kill, injury, or harm people. These threats can be targeted at a person, or for ideological purposes. In this age of social media, assumed anonymity, and keyboard bravery, it can be easy for all of us to have a carefree attitude while posting or messaging people online, thinking that no repercussions can come from our actions. In Florida, the safest way to stay out of trouble is by keeping in mind that your online posts last forever and can even bring you criminal repercussions.

Let’s say you and your partner go through a contentious quarrelsome break-up. Your feelings are hurt, and you want to vent your anger. It would be  a lot easier to say these things from behind a computer screen, so you pull up your partner’s social media profile, hit the direct message button, and fire away, calling them names, voicing your frustration, and getting so worked up you even write “I’m going to kill you!” Now, the next day, you’ve cooled off. You look back at the message feeling a bit bad, a bit embarrassed, and a bit regretful, but it doesn’t even cross your mind to contemplate the legal implications. More time passes, and you receive a knock at your door. Law enforcement is there, and they start informing you of your rights while putting you in a squad car. All for writing a threat to kill or injure an ex. A threat you never even thought anyone would take seriously.

Did you really commit a crime? What are your options? Turn to an experienced Tallahassee criminal defense attorney to support and advocate for you throughout the process.

Written Threat Crimes

Under Florida law, it is a crime for any person to send, post, or transmit, whether on paper, electronically, or in any other manner, something that includes:

  1. a threat to kill or do bodily harm to another person; or
  2. a threat to conduct a mass shooting or act of terrorism.

You can even be charged when trying to get someone else to send a threatening message for you. However, this law does not include telephone calls discussing any of the above threats. This crime is classified as a second-degree felony and is punishable by up to fifteen years in prison or a fine not to exceed $10,000. To read more about second-degree felonies visit our blog here.

Current Law – Section 836.10 of the Florida Statutes.

The crime of Written Threats was recently changed on 10/01/2021 to cope with the rapid changes in technology. The previous Statute can be found here. It stated in pertinent part the following:

“Any person who writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication…to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person . . . commits a felony of the second degree. . .”

The statute covered more than the situation above wherein someone threatens a person or their family and discusses written threats intending to commit mass shootings or acts of terrorism.

Under the recently updated Fla. Stat. § 836.10, the legislation changed the language of the statute to better encompass the electronic communications that are constantly being transmitted in the state. The legislation includes in the first section of the Statute a definition of what exactly constitutes electronic records:

(1) As used in this section, the term “electronic record” means any record created, modified, archived, received, or distributed electronically which contains any combination of text, graphics, video, audio, or pictorial represented in digital form, but does not include a telephone call.

This updated law also did away with the section regarding family members, in lieu of providing simpler but broader wording. The statute used to criminalize when a threat was made “to the person to whom such letter or communication is sent.” As such, the legislation added that any threats in the writing involving that person’s family would also penalize the writer.

Under the new and simpler wording of “to another person,” the legislation not only still includes family members but also includes any other person the writer is threatening to harm.

History and Why the Statute was Created

This statute was first enacted in 1913 and made it a criminal offense for

any person [to] write or compose and also send or procure the sending of any letter or inscribed communication … to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent…

After last year’s amendment, the statute has been amended a total of six times. The fourth amendment to the statute included electronic communications, with the fifth amendment focusing on preventing mass shootings or terrorist acts.

On February 14, 2018, a nineteen-year-old former student arrived at Marjory Stoneman Douglas high school. Equipped with smoke grenades and a gas mask, he set off the fire alarm. Shortly after entering the school, he then opened fire at the students fleeing from what they thought was a drill. The gunman advanced through the school, fatally shooting seventeen people. Once he was done with his mass shooting, the gunman disarmed himself and fled alongside the other students. Thankfully, he was later apprehended by the police a couple of miles from the school.

The Florida legislature enacts laws to deal with current and pressing issues affecting the State and its residents. After the tragic shooting at Marjory Stoneman Douglas High School, the 2018 Florida legislature passed the MSDHS Public Safety Act in an attempt to enhance school safety protocols and prevent another mass shooting. The act outlined significant reforms intending to make schools safer, including:

  • Creating the Office of Safe Schools and a description of the office’s responsibilities
  • Enacting a new law, Stat. 790.064, which prohibits “a person who has been adjudicated mentally defective or been committed to a mental institution from owning or possessing a firearm until certain relief is obtained.” To learn more about who can own or purchase a gun in Florida, visit our blog here.
  • The requirement that at least one “Safe School Officer” be employed at each school.
  • And most importantly for this blog, amending for the 5th time Section 836.10 to prohibit “a person from making, posting, or transmitting a threat to conduct a mass shooting or an act of terrorism in a writing or other record.”

As previously mentioned, with the 6th amendment the Legislation made sure to better clarify and encompass what an electronic record is for purposes of this law.

Where is the Line? Cases Examining Written Threats

What If I Didn’t Mean It?

Unfortunately, even if you never intended to harm the victim, their family, or commit any act of terrorism or mass shooting, the State can still convict you of perceived threats.

In Saidi v. State, the court found that the law doesn’t require the sender to have the specific intent to cause harm. Mr. Saidi was convicted of sending written threats to his former wife’s attorney and the Circuit Court. Mr. Saidi wrote how he wanted the court to approve his motion titled “Notice of Filing Warning and Threats to Kill and Motion Requesting Scheduling of an Urgent Hearing,” where he threatened to kill his former wife and her counsel by using the weapon of truth. The urgent hearing was for the judge to hear how “USING THE WEAPON OF THE TRUTH WILL SET EVERYONE FREE.”

The court found that the law against written threats is similar to extortion, where the actual intent of the person is not at issue. In order to violate this law, the court does not look at what the accused actually intended to do, nor do they look at whether they could actually could do it. The court explained, the law is violated when the recipient receives the threat. With the new changes to the law, a person needs to do even less than before, as the simple act of posting a threat on a social media platform is enough to satisfy the delivery element.

What if I Didn’t Send it Directly/Posted it to Facebook Generally?

Even if you never sent the communication to the victim directly, or you just posted it to your personal social media page, if the victim, the victim’s family, or another threatened individual reads it, that is sufficient to form a basis for the charge.

In O’Leary v. State, the court found that the act of posting on Facebook constitutes a communication to all of that person’s Facebook friends. Mr. O’Leary posted on his personal Facebook page a statement threatening death or serious bodily injury to his relative and the relative’s partner as well. In his post, Mr. O’Leary calls his relative and her partner by name and is upset because of a conversation where the relative seems to have stood up for herself. In his post, Mr. O’Leary makes some homophobic statements and then states “if you ever talk to me like that… I’m gonna fuck you up and bury your bitch ass.”

When this originally came out, the court of appeals found that no previous case had dealt with a message posted on a person’s personal Facebook page. They found that the sending part of the law can be met when it can be viewed by other people. They went on to explain that a Facebook personal page is not like a diary, where the message is only meant for the person writing it. A Facebook page is meant to be viewed by the person’s Facebook friends. As such, when Mr. O’Leary posted the threatening message, and his cousin saw it, the subsequent fact that the cousin then told his uncle who then told the relative who was being threatened constituted a sending and violated Section 836.10.

The legislature used this case to codify what the court said in the newest version of the bill, and even expanded upon it. It is now even clearer that a simple video or photo could land someone under hot water as recent cases have demonstrated. To read about how law enforcement is using people’s social media post read our blog here.

What About my First Amendment Right to Free Speech?

Florida appellate courts have held that threats to commit bodily injury, kill, or commit acts of terrorism or a mass shooting are not protected forms of speech under the First Amendment to the United States Constitution.

In Smith v. State, the court found that Section 836.10 is justified by the right of all people to live free of unexpected and unwarranted fear of harm. Mr. Smith believed himself to be the victim of a conspiracy created by judges and attorneys. He mailed a letter where he stated that the paper had been printed with a “rare, lethal toxin for which there is no antidote.” Even though the wife of the judge who read the letter did not believe it would poison her, other recipients of his letter showed a greater level of concern. Mr. Smith went on to claim his intent was never to cause any harm, and that the hidden humor would show it was a hoax to bring attention to his perceived corruption of the judiciary. Nonetheless, the court found that freedom of expression does not outweigh the need for personal and family safety.

In the previously discussed case of Saidi v. State, the court found that threats to injure or kill are not constitutionally protected. This means that the first amendment right is not compromised when the legislation prohibits a person from making such threats. The court of appeals found that because threats to injure or kill are not constitutionally protected, Mr. Saidi’s 1st Amendment rights were not violated and did not shield him from the culpability of violating Section 836.10.

What Does the State Need to Convict?

In Florida, there are two ways the State can go about proving the crime, depending on whether the written threat was made to another person, or the written threat was regarding an act of terrorism or a mass shooting.

Threats to another Person

To prove this offense, the prosecutor must prove the following elements beyond a reasonable doubt:

  1. The accused wrote either online, electronically, or on paper; and
  2. The communication written or composed contained a threat to kill or to do bodily harm to another person; and
  3. The accused made the communication in a manner that could be viewed by another person.

Threats to Commit Terrorism or a Mass Shooting

To prove this offense, the prosecutor must prove the following elements beyond a reasonable doubt:

  1. The accused wrote either online, electronically, or on paper; and
  2. The communication contained a threat to commit an act of terrorism or a mass shooting; and
  3. The accused made that communication in such a matter that another person would view the communication as a threat.

Criminal Procedures under Section 836.10

The state of Florida has jury instructions that are read to the jury at the end of the trial and provide directions for the jury to follow. Included in the instructions are how to evaluate evidence, proper behavior in the courtroom, and any potential legal issues that may arise. The standard jury instructions given out by Florida’s Supreme Court for the crime of a written threat are:

  1. The Defendant made a threat to kill or do bodily harm to another person or conduct a mass shooting or conduct an act of terrorism in a writing or other record.
  2. The Defendant sent, posted, or transmitted or procured the sending, posting, or transmission of that writing or other record.
  3. Finally, the Defendant did so in any manner in which it may be viewed by another person.

The jury in a written threat case must decide if the prosecution proved beyond a reasonable doubt the three above elements of this crime. If the jury decides that the evidence is not enough to prove this second-degree felony, they can opt to choose one or both of the lesser included offenses. These two offenses are Attempt and Assault.

Under Fla. Stat. Section 777.04(1), a criminal attempt occurs where an individual tries to commit a crime but fails. Attempt is charged as one step below the actual commission of the crime. In the case of a written threat, an attempt of that crime would be classified as a third-degree felony punishable by up to 5 years or a $5,000 fine. To read more about attempted crimes under Florida law, you can go to our blog here.

Under Fla. Stat. Section 784.011, an Assault is “an intentional, unlawful threat by word or act to do violence to the person of another.” There must be an “apparent ability” to carry out the threat and it must create a well-founded fear in the victim that the violence is imminent. This crime is classified as a second-degree misdemeanor and is punishable by imprisonment of up to 60 days or a fine not to exceed $500. To read more about Assault, click on our blog here.

To read more about jury instructions in a criminal case or defenses to jury instructions, click on the appropriate blogs.

Written Threat Penalties in Florida

In Florida, Written Threats are classified as a second-degree felony crime, punishable by up to fifteen years in prison/15 years of probation, and a fine of up to $10,000. This offense is ranked as a Level 6 offense under Florida’s Criminal Punishment Code, so even if this is your first offense, the State will generally seek a conviction, including jail time, at all costs.

What Defenses Are Available?

While the defenses for this offense will vary depending on the specific factual nature of the crime, some common defenses to the crime of Written Threats include:

  • The accused was not the sender of the written threat.
  • The written threat was not sent under the meaning of the statute and case law interpreting the statute.
  • The written communication does not contain a threat.
  • The communication was posted, or sent, by accident.
  • The written threat was a non-threatening saying, a figure of speech, common hyperbole, or metaphor.
  • The accused has been falsely accused.
  • The threat is not to kill, commit bodily injury, commit an act of terrorism, or a mass shooting.
  • The accused did not make or post the threat in a manner that was viewable (like a journal).

Tallahassee Criminal Defense Attorney

While threats can sometimes be made without much seriousness in mind, or contemplation, they can harbor serious consequences if the victim pursues legal action. If you or a loved one has been accused of a Written Threat crime, contact an aggressive and knowledgeable Tallahassee criminal defense attorney as soon as possible to formulate a strategy. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have decades of experience defending Floridians against all types of misdemeanor and felony offenses and will ensure every defense applicable is explored in your favor. Call us today at (850) 681-7777 or send an online message to discuss your case during an open and free consultation with an attorney in our legal team.

Written by Jesus Lozano

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