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      In the age of email, electronic communications, and social media, the Florida Legislature now allows an individual to petition for protection against cyberstalking. Florida Statutes § 784.048(1)(d) defines cyberstalking as “engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”

      “Whether a communication caused substantial emotional distress should be narrowly construed and is governed by the reasonable person standard.” David v. Textor, 189 So. 3d 871, 875 (Fla. 4th DCA 2016). “In determining whether substantial emotional distress occurred, the courts look to the standard of a reasonable person in the petitioner's shoes.” Florida Statutes § 784.048(1)(b) defines "course of conduct" as “a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.” The terms do not include constitutionally protected activity such as picketing or other organized protests.  In reviewing the validity of a cyberstalking injunction, the appellate courts have been especially sensitive to two issues: constitutionally protected activity implicating the First Amendment and conduct directed at a particular person.

       As the Third District Court of Appeal noted in Chevaldina v. R.K., 133 So. 3d 1086 (Fla. 3d DCA 2014):

Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that proclaimed, “DON'T BUY HERE! ONLY LEMONS FROM THESE CROOKS!” Existing and prospective customers of the auto dealership considering such a poster made up their minds based on their own experience and research. If and when a hypothetical complainant with the poster walked into the showroom and harangued individual customers, or threatened violence, however, the previously-protected opinion crossed the border into the land of trespass, business interference, and amenability to tailored injunctive relief. The same well-developed body of law allows the complaining blogger to complain, with liability for money damages for defamation if the complaints are untruthful and satisfy the elements of that cause of action. Injunctive relief to prohibit such complaints is another matter altogether.

 

Precluding such conduct could constitute a prior restraint on a person’s First Amendment right to free speech which is impermissible. Id.  “Where comments are made on an electronic medium to be read by others, they cannot be said to be directed to a particular person.” David v. Textor, 189 So. 3d 871 (Fla. 4th DCA 2016).  Similarly, a "report to an arm of government, concerning a matter within the purview of the agency's responsibilities," such as a complaints, serves a legitimate purpose and was a constitutionally protected activity. Curry v. State, 811 So.2d 736, 741 (Fla. 4th DCA 2002)

When reviewing cyberstalking injunctions, courts and attorneys should pay particular attention to whether the conduct in question is protected by the First Amendment and whether such conduct is actually “directed” at a particular person.

 

        Attorneys practicing criminal law should be extremely careful when representing foreign citizens in criminal cases, even minor misdemeanors. Even if your client has been a legal permanent resident for decades, a conviction for a specified offense could pose serious immigration problems. Once a conviction becomes final, it is extremely difficult to get it vacated. The following article details the unique procedural hurdles that a family had to endure and illustrates an extreme example of this process.

        In 2004, after spending their working years in New York, Bernard and Josephine Storey, decided to move to Clearwater, Florida and retire near the beach. Bernard, a legal permanent resident of the United States for over forty years, a father, and grandfather, developed bipolar disorder after suffering a head injury sustained during a car wreck. In 2005, after Bernard suffered a psychological breakdown, he was arrested in Clearwater, and subsequently placed on probation. Almost a year and a half later, in 2007, Bernard violated his probation with a new misdemeanor charge. Without the benefit of his medication and thinking there was no immigration issue, he pled to the misdemeanor and admitted his probation violation. The circuit court sentenced Bernard to a year and a day in jail. Immigration Customs Enforcement (ICE) put a hold on Mr. Storey, which mandated his deportation once he completed his sentence. According to ICE, Bernard was now convicted of an aggravated felony and deportable since the original charge was aggravated assault and his sentence was over a year, literally one day over. Once he was transferred from the Pinellas County Jail to the Department of Corrections, correctional officers noted Bernard acting strange and he was sent to the Crisis Stabilization Unit and given injections of psychotropic medication.

         Faced with the possibility of her husband’s deportation, Josephine retained counsel and a legal battle that would take almost a decade began. First, we filed motions for postconviction relief in the circuit and county court and argued amongst other things that Bernard’s pleas were involuntary due to the lack of his medication and his mental health. After the motion was partially denied without a hearing, I appealed the denial to the Second District Court of Appeal. The appellate court reversed and remanded Bernard’s case back to the trial court for an evidentiary hearing on his motion. Storey v. State, 32 So. 3d 105 (Fla. 2d DCA 2009). The trial court denied the motion a second time after a hearing despite hearing expert testimony from a forensic psychologist confirming Bernard’s psychosis at the time of the admission to the violation of probation, the basis for his removal from the United States.

       For a second time, I appealed Bernard’s case to the Second District Court of Appeal, which became extremely complicated. After complete briefing, oral argument, and while the appeal was pending, immigration decided to deport Bernard back to his native country of Trinidad, away from his wife, Josephine, his children, and grandchildren, all of whom were American citizens. Six months after the oral argument, the Attorney General’s office found out about the deportation and filed a motion to dismiss the appeal, which was granted without an explanation. The admission to the violation of probation and the resulting sentence, the basis of the appeal, was the sole reason Bernard was deported. Despite pointing this out to the appellate court, it denied a motion for rehearing and motion for rehearing in banc. Bernard was banished to Trinidad and Josphine’s health seriously deteriorated requiring multiple hospitalizations, including visits to the intensive care unit.

     We determined that the proper procedural remedy was to file an extraordinary writ, a petition for a writ of mandamus, in the Florida Supreme Court, SC12-2504. In the petition, we argued that it was improper for an appellate court to dismiss an appeal merely because defendant was deported, when the sole basis for the deportation was the issue on appeal. The Florida Association of Criminal Defense Lawyers and the Catholic Charities Legal Services filed amicus briefs in support of Bernard’s position. After a year, the Florida Supreme Court agreed and ordered the Second District Court of Appeal to rule on Mr. Storey’s case. On May 24, 2014, the Second District reversed the denial of Bernard’s motion, found that his plea was involuntary, and remanded the case back to the circuit court. Storey v. State, 139 So. 3d 448 (Fla. 2d DCA 2014). After some negotiation, the State Attorney’s Office elected not to pursue Bernard’s probation violation and the state conviction that gave rise to his deportation was dismissed.

      Even though the state conviction that gave rise to Bernard’s deportation was reversed, his case still had to go before the immigration court in Miami. Thankfully, in March 2016, He was able to visit Josephine in the hospital and they currently live in Clearwater.

      Florida law provides that any citizen can petition the circuit court for an injunction for protection against domestic violence, dating violence, sexual violence, repeat violence, and stalking. If an injunction is granted, the implications for a respondent can be severe, including, but not limited to: the loss of firearms, the use of the injunction during a custody or timesharing dispute , and an arrest without a warrant if there is a violation of the injunction. This article will discuss some general observations and legal issues that occur during these proceedings.

      Injunction hearings in Pinellas County are held at the St. Petersburg courthouse, the Clearwater courthouse, and stalking/cyberstalking injunctions are held at the Criminal Justice Center. The overwhelming majority of petitioners and respondents represent themselves and are unware of the rights they have. Frequently, the presiding judge will explain what the injunctions are and then call the respective parties. Many judges will ask the respondent whether he or she agrees to the injunction and, if a person agrees, then the injunction is granted without the respondent really knowing the collateral effects of agreeing to the injunction.

     Somewhat recently, judges and attorneys have had two very reasonable compromises in lieu of an evidentiary hearing and a final judgment of injunction. First, presiding judges have suggested that one or both parties agree to continuing or allowing a temporary injunction to remain in place for an extended period of time and then, provided no one moves for a hearing or to extend the injunction, the temporary injunction is dismissed. This is beneficial because it provides protection to a party or parties, firearms are still removed, and, if there is unwanted contact, the violator can still be arrested without a warrant. It also allows the respondent to be able to say that a final injunction was never entered against them, but was instead dismissed. Second, if there is a pending dissolution of marriage or a paternity action, the parties could dismiss the injunction petition in favor of a chapter 61 “no contact” order. If the no contact order is violated, the petitioner can file a motion for contempt in the pending dissolution or paternity action, have a hearing before a judge, and have the respondent incarcerated for up to six months upon the finding a violation of the “no contact” order. The respondent can say that the injunction was dismissed and not worry about being arrested without a warrant. Both are good compromises for attorneys representing a petitioner where the evidence is weak or when representing respondents when the allegations are particularly bad.

     If a compromise is not reached, the petitioner has the burden to prove the incidents by the greater weight of the credible evidence and both parties are entitled to a full panoply of due process rights, including notice, cross-examination, adequate hearing time, and the ability to present witnesses and evidence. The Second District Court of Appeal has repeatedly reversed injunctions when a trial court violates any of these rights. On occasion when the evidence is lacking, judges will only grant an injunction for a short period of time, 30 days to three or six months, some may say to prevent meaningful appellate review since the injunction would expire prior to an appellate decision rendering the appeal moot. The Second District has also held that this procedure does not make the appeal moot because, even though the injunction expired, the collateral consequences that follow from the injunction, make the injunction reviewable. Uncivil behavior and general relationship problems are insufficient to grant an injunction.

     Attorneys and judges must be aware of a specific due process right that appellate courts have paid particular attention to and which has been the subject Pursuant to Florida Statute and case law, petitions for injunctions must specifically allege the acts that the petitioner believe give rise to the injunction. Florida appellate courts have determined that a petitioner must state what events occurred in an injunction petition in order to be able to testify to those events at the return hearing. If a petitioner testifies to acts not alleged in the petition, a respondent is not properly put on notice of those acts, he or she cannot properly defend against them, and it thus violates due process. A respondent should object during the return hearing if this ever happens or else risk an argument from the petitioner that the issue was waived for appellate review due to the lack of a contemporaneous objection.

     In conclusion, civil injunctions in Florida are very serious proceedings and great care should be taken when representing an individual on an injunction case or presiding over return hearings. Due process rights apply to both parties, the allegations must be alleged in the injunction petition, and appellate courts are especially sensitive to these injunctions and the collateral consequences that follow.

Florida Statutes § 90.803(23) provides a hearsay exception for statements of children with a mental, developmental, or emotional level of 11 or less describing any act of child abuse or neglect. This includes, any act of sexual abuse against a child, the offense of aggravated child abuse, the offense of child abuse, or any offense involving the unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, or on the declarant child. These statements are admissible in both criminal and civil proceedings, including dissolution of marriage proceedings and civil injunction hearings (Domestic Violence, Dating Violence, Repeat Violence, and Sexual Violence Injunctions). F.S. § 90.803(23)(a). With emotions running high and contested time sharing issues involving children, the family law practitioner should be well aware of this hearsay exception. The purpose of this article is to review the basic requirements for admission of such statements.

In order for a statement regarding child abuse to be admissible under Florida Statutes § 90.803(23), multiple requirements must be met. First, a trial court must determine in a hearing, outside the presence of the jury, that: (1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability. State v. Townsend, 635 So.2d 949, 954 (Fla., 1994); F.S. § 90.803(23)(a)(1). The court should consider the following factors in making this determination: the reliability of the child, the nature and duration of the abuse or offense, the relationship of the child to the person who is alleged to have committed the abuse, the physical and mental age and maturity of the child, the reliability of the assertion, and any other factor that the trial court deems relevant. F.S. § 90.803(23)(a)(1). Second, the child must either testify or, if unavailable to testify, the court must find there is other evidence of abuse that corroborates the statement(s). F.S § 90.803(23)(a)(2). If the child is unavailable, the court must determine that the child’s participation in the hearing would cause a “substantial likelihood of severe emotional or mental harm,” along with findings pursuant to in Florida Statutes § 90.804(1), which defines unavailability as a witness. Third, the child must be 11 years old or younger, or have a mental, emotional, or developmental level of an 11 year old or younger. F.S. § 90.803(23)(a).

It is reversible error to admit hearsay statements related to child abuse in both the civil or criminal context when proper foundational requirements have not been established by the proponent of the evidence. Zmijewski v. B’Nai Torah Congregation of Boca Raton, Inc., 639 So.2d 1022, 1024 (Fla. 4th DCA 1994); Feller v. State, 637 So.2d 911, 915 (Fla. 1994).The trial court is required to make definitive findings of fact on the record before the statement can be admitted. F.S. § 90.803(23)(c). This hearsay exception only applies to statements of the child victim, and not to statements of children who are witnesses to the child victim’s abuse. Allison v. State, 661 So.2d 889, 893 (Fla. 2d DCA 1995). The statute does not list a notice requirement prior to the introduction of these statements for civil cases as it does in criminal (10 days notice required). However, the language of the statute states that there must be a hearing to determine the admissibility of the statements “outside the presence of the jury.” The best practice would to file the appropriate pretrial motion or notice to apprise the trial judge in advance.

Florida appellate courts have indentified the following factors that a trial court should look for when determining whether a statement describing child abuse is admissible:

• The child made a spontaneous statement and in response to questioning. Townsend, 635 So.2d at 954.

• The child was emotionally affected by the incident when the child makes the statement. Distefano v. State, 526 So.2d 110,115 (Fla. 1st DCA 1988)

• The child uses unexpected terms of his or her age when describing the abuse. Idaho v. Wright, 497 U.S. 805 (1990).

• The statement was made very close in time to the abuse. Perez v. State, 536 So.2d 206, 211 (Fla. 1988).

• The child makes the statement to numerous people. Id.

• The child’s statement is not detailed and contradictory. State v. Romanez, 543 So.2d 323, 324 (Fla. 3d DCA 1989)

• The possibility of an improper influence, e.g. a custody determination. Townsend, 635 So.2d at 954.

• The competency of the child. Id.

Family law attorneys should insure that all of the requirements are met prior to introducing a hearsay statement involving child abuse to avoid reversible error. In N.W. v. M.W., 41 So.3d 383 (Fla. 2d DCA 2010), a father moved to have unsupervised visitation with his daughter, whom he was accused of sexually molesting, during the pendency of dissolution proceedings. The appellate court held:

The trial court must make findings that satisfy two criteria: "(1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability." Id.

The mother relied on statements from the child to her, her grandmother, a therapist, and to a family friend. Id. The trial judge here failed to make “findings with regard to any of these sources and failed to address the individual statements and the circumstances under which they were made.” Id.

The Fourth District Court of Appeal encountered an extreme case during an appeal from a post-dissolution order modifying the final judgment. In Pallay v. Pallay, 605 So.2d 582, 583 (Fla. 4th DCA 1992), the parties had three (3) minor children. Over ten (10) days of testimony, the mother called numerous witnesses, including all three (3) children, who asserted that the father sexually abused them. Id. The father countered with additional witnesses that the mother was emotionally abusing the children and coaching them to lie to various people concerning the alleged abuse. Id. H.R.S., the Child Protection Team, the Sheriff’s Office, the State Attorney’s Office, and the Guardian At Litem all concluded that the abuse was “highly unlikely.” Id. at 584. The appellate court affirmed the trial court’s rulings on both issues. Id. at 585. It reasoned that the trial court’s conclusions of fact that the mother had alienated the children from the father and used any means to prevent meaningful visitation, were supported by the record to uphold a substantial change in circumstances to warrant a custody modification. Id.

Attorneys practicing family law will encounter testimony involving child abuse hearsay during their career. A thorough understanding of the practical application of Florida Statutes § 90.803(23) will be extremely beneficial for advocating for their client’s position. If a party seeks to admit or exclude the testimony, he or she should pay careful attention to the factors above, identify witnesses who can corroborate or disprove the allegations, and make sure those witnesses testify at a pretrial reliability hearing. These witnesses could include family members, social workers, and members of law enforcement. However, a practitioner should use care when subpoenaing law enforcement officers if there is an ongoing investigation and make sure to obtain the proper permission from the trial court via motion when seeking to admit this testimony or records (Law enforcement or child abuse investigators/DCF) as it is usually privileged by statute absent a court order. An Assistant State Attorney ordinarily cannot and should not be subpoenaed to testify even if charges are dismissed or never pursued as their investigation is considered work product. State v. Rabin, 495 So.2d 257, 260-261(Fla. 3d DCA 1986); Eagan v. DeManio, 294 So.2d 639, 640 (Fla. 1974). If a proper predicate and a prehearing determination of reliability have not been made, an objection should be made stating the specific grounds to preclude this damaging testimony.

J. Andrew Crawford, Esquire is an AV-rated criminal defense attorney who practices in Pinellas, Hillsborough, Manatee, and Sarasota Counties. Mr. Crawford’s practice focuses on criminal defense, criminal appeals, and civil appeals. Mr. Crawford also handles Domestic Violence, Repeat Violence, Sexual Violence, and Dating Violence Injunction hearings and appeals. He can be reached via email at andrew@crawforddefense.com.

Have you ever had a client come to you with the idea of secretly recording a conversation? Or worse yet, bring you a tape they surreptitiously made? Florida Security of Communications Act, Chapter 934 of the Florida Statutes, recognizes that oral, electronic, and wire communications are private, unless both parties consent, and cannot be recorded, absent a specific statutory exception. The legislative intent behind this statute is to safeguard the privacy of innocent people to prevent unauthorized interception of these communications. Fl.St. § 934.01(4). The purpose of this article is to familiarize practioners with a basic overview of this statute, its exceptions, and criminal penalties associated with its violation.

Definitions contained within the statute are crucial to understanding the application of Chapter 934. The statute applies to oral, electronic and wire communications. Fl.St. § 934.03(1)(a). An oral communication means an oral statement made by a person exhibiting an expectation of privacy, and does not include statements made during the course of public meetings or events. Fl.St. § 934.02(2). For an oral communication to be protected under this statute the person making the statement must have a subjective expectation of privacy that society recognizes as reasonable, e.g. in a home. Jackson v. State, 18 So.3d 1016, 1029-1030 (Fla. 2009). Key factors in making this determination are the location of the conversation, the manner in which it is made, and the type of the communication. Stevenson v. State, 667 So.2d 410, 412 (Fla. 1st DCA 1996). A wire communication is any aural transfer made in whole or part through the aid of wire, cable or other similar connection between the “point of origin and point of reception,” including through a “switching station,” Fl.St. § 934.02(1). Wire communications are not covered by the statute if the communications were made to the public. Dorsey v. State, 402 So.2d 1178,1183 (Fla. 1971). Electronic communication means any transfer of signs, signals, writings, images, data, or intelligence transmitted in whole or part by “wire, radio, electromagnetic, photoelectronic, or photooptical” means. Fl.St. § 934.02(12). This does not include electronic funds transfers, a tone only paging device, or an electronic or mechanical device that follows the location of a person or object. Fl.St. § 934.02(12)(b)-(d). Interception is defined as the aural or other acquisition of any contents of the oral, electronic, or wire communications with electronic, mechanical, or other device. Fl.St. § 934.02(3).

Any person who intentionally intercepts, attempts to intercept, or hires another person to intercept an oral, wire, or electronic communication can be charged with a third-degree felony, punishable by up to five years in prison and a $5,000.00 fine. Florida Statutes § 934.03(4)(a). There are exceptions to the prohibition contained in Florida Statutes § 934.03. However, the two (2) most frequent will be discussed below. First, a party is not criminally liable if both parties consented to the recording of the conversation. Thompson v. State, 731 So.2d 819, 820 (Fla. 5th DCA 1999). For example, if a person leaves another a voicemail or if a business informs a person that “for quality assurance this call may be recorded.” Second, the legislature has recognized an exception for law enforcement officers in the investigation of criminal activity. § 934.03(2)(c). The two (2) most common applications of this exception are: (a) where a police informant or an alleged victim consents to the recording of their communication and makes a controlled telephone call to the target of the investigation, of the communications.

Not only is the unauthorized interception of communications illegal, but Florida Statues prohibits the contents of the communications and any evidence derived there from being used in any court proceeding, including a trial, a hearing, or a grand jury. Fl.St. § 934.06. A family law practitioner should be well aware of this privilege. For example, a spouse could not record his wife’s telephone communications made from the marital home absent consent or court authorization, and such recordings were inadmissible in a dissolution of marriage proceeding. Markham v. Markham, 272 So.2d 813,814 (Fla. 1973). However, accidental taping on a neighbor’s answering machine of a conversation between a mother and her child did not violate the statute or preclude the father from using it in a custody modification proceeding because there was no intentional recording. Otero v. Otero, 736 So.2d 771, 772 (Fla. 3d DCA 1999). Additionally, Florida Statutes § 934.10 creates a civil cause of action allowing an individual to sue any person or entity who intercepts, discloses, or uses intercepted communications. Civil damages can include, actual damages, punitive damages, attorney’s fees and costs, and equitable or declaratory relief. Fl.St. § 934.10(1)(a)-(d).

During the representation of clients through civil, criminal, or family law cases, a Florida attorney should be familiar with Chapter 934 of the Florida Statutes, its exceptions, and the criminal and civil ramifications from illegal interception of oral, wire, or electronic communications. Illegal recordings or interceptions could result in criminal penalties, a civil lawsuit, and exclusion from evidence.

J. Andrew Crawford, Esquire is an AV-rated criminal defense attorney who practices in Pinellas, Hillsborough, Manatee, and Sarasota Counties. Mr. Crawford’s practice focuses on criminal defense, criminal appeals, and civil appeals. Mr. Crawford also handles Domestic Violence, Repeat Violence, Sexual Violence, and Dating Violence Injunction hearings and appeals. He can be reached via email at andrew@crawforddefense.com.