Posted by Nydia Streets of Streets Law in Florida Domestic Violence

In order to obtain a stalking injunction in Florida, a party must prove two separate incidents of stalking. When the parties to a stalking injunction case are neighbors, an injunction could interfere with the accused’s right to enjoy and be present in his or her own home. This was an issue in the case Sutton v. Fowler, 4D20-1978 (Fla. 4th DCA December 22, 2021).

The parties to this case were neighbors in a condominium building. The victim lived above the accused. The victim petitioned for a stalking injunction based on three incidents: (1) the accused stood on his balcony and yelled expletives and howled like a wolf (the victim could not recall if the accused used the victim’s name in this incident); (2) The accused yelled expletives at the victim using the victim’s name; and (3) the accused had to be restrained from entering the victim’s apartment while screaming and yelling at the victim. When the accused was served with the a temporary injunction, he immediately violated it by going to his balcony and yelling expletives in the direction of the victim’s unit. At a hearing on the petition, the victim’s lawyer offered evidence regarding the accused’s behavior after he received the injunction, and the accused’s lawyer objected that this incident was not included in the petition. Despite this, the trial court allowed the testimony to occur and entered an injunction based in part on this as well as the three incidents alleged in the petition. The injunction prohibited the accused from living in his home and prevented him from entering the building in which he lived. He appealed.

The appellate court noted “[The accused] argues that the trial court erred by admitting evidence concerning his violation of the temporary injunction stemming from the events the evening of June 12 and into the early morning of June 13. Without those events, the evidence was insufficient to support the issuance of a permanent injunction for protection against stalking. We agree that the court erred in considering those events in determining whether to issue a permanent injunction, because [the victim] never sought to amend his petition to allege them. While the violation of the temporary injunction may have been relevant to the scope of any injunction, the trial court relied on the conduct to support the granting of the injunction, over the objection of [the accused].” The court turned its attention to the matters actually pled in the petition and found that only one incident qualified as stalking - the incident in which the accused had to be restrained from entering the victim’s home. The other alleged incidents were not enough, according to the appellate court. Therefore, the injunction was reversed.

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