GLORIA JOHNSON, APPELLANT,
v.
DEBBIE BROOKS, APPELLEE
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Gloria Johnson appeals an injunction granted under Florida's repeat violence statute. The court holds that the appellee failed to establish the statutory definition of violence (assault, battery, or sexual battery), and therefore the injunction was improper.
The court reversed the injunction because appellee failed to demonstrate violence as required by the statute. Mere threats and allegations of general dangerousness, without proof of assault, battery, or sexual battery, do not constitute the statutory basis for injunctive relief under Section 784.046.
[1] A statute authorizing injunctive relief for "repeat violence" requires proof of at least two incidents of violence, defined as assault, battery, or sexual battery.
[2] Allegations of telephone calls, threats of eternal damnation, and knowledge of the petitioner's violent tendencies toward others do not constitute "assault" or "battery"…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Violence is defined in the statute as "any assault, battery, or sexual battery" and repeat violence is defined in part as "two incidents of violence."”
Establishes the statutory definition of violence required for injunctive relief under Section 784.046
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Join FLexlaw to unlock all legal intelligenceAppellee Debbie Brooks alleged that appellant Gloria Johnson called her repeatedly, told her she would burn in hell, attempted to locate appellee's so…
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ERVIN, Judge.
Gloria Johnson appeals an order granting appellee, Debbie Brooks, injunctive relief pursuant to the provisions of Section 784.-046, Florida Statutes (1989). Appellant urges that the trial court erred in granting the injunction, because appellee had failed to demonstrate violence, as required and defined by the statute, as a basis for relief. We agree and reverse.
Section 784.046 authorizes an injunction for the protection of persons who are victimized by “repeat violence.” Violence is defined in the statute as “any assault, battery, or sexual battery” and repeat violence is defined in part as “two incidents of violence.” §§ 784.046(l)(a)-(b), Fla.Stat. (1989).
In the instant case, appellee alleged in her petition that appellant had called her on the telephone numerous times, that appellant told her she would burn in hell, that appellant was attempting to locate appel-lee’s son who was then in the United States Army, and that appellant was known to be violent, having caused bodily harm to other persons. In consideration of the threats, appellee was concerned for both her safety and that of her two sons. Clearly there were no allegations of any battery, sexual or otherwise, committed on appellee or her two sons. Battery, as provided in Florida law, involves actually and intentionally touching or striking another person against his or her will or intentionally causing bodily harm to another. § 784.03, Fla.Stat. (1989). Sexual battery involves “oral, anal, or vaginal penetration.” § 794.011(l)(h), Fla.Stat. (1989).
Moreover, there was no proof of an assault, defined by statute as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla.Stat. (1989). This is so because the record fails to show that appellant did any act which created a well-founded fear in appellee that violence was imminent. A person’s mere intention to commit an assault is not enough; there must be some overt act sufficient to demonstrate a threat directed at the person placed in fear. See Battles v. State, 288 So. 2d 573 (Fla. 2d DCA) (evidence was insufficient to support aggravated assault conviction where facts showed that defendant, who was leaving a supermarket following a robbery with a gun in his hand, dropped the gun when ordered to do so by police), cert. denied, 295 So. 2d 302 (Fla.1974). Cf. State v. Wilson, 276 So. 2d 45 (Fla.1973) (facts showing defendant held pistol on victims in such a manner as to threaten the victims with violence supported instruction for assault).
Because appellant’s conduct constituted neither a battery nor an assault, there was no statutory basis upon which the trial court could grant appellee’s petition for injunctive relief.
REVERSED.
NIMMONS and ALLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (22 total)
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Power v. Boyle, 60 So. 3d 496 (Fla. 1st DCA 2011)…respondent yelled at petitioner, even when respondent allegedly threatened to kill petitioner and her family, were not sufficient to support an injunction without some overt act creating a well-founded fear of imminent violence); Johnson v. Brooks, 567 So. 2d 34, 35 (Fla. 1st DCA 1990) (holding that numerous harassing phone calls, some containing threats, were not sufficient to support trial court’s decision to grant injunctive relief). Moreover, based on the confrontation that Mrs. Boyle initiated with Ms.…
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Santiago v. Towle, 917 So. 2d 909 (Fla. 5th DCA 2005)…n overt act indicating an ability to carry out the threat or justifying a belief that violence was imminent. See Gagnard v. Sticht, 886 So. 2d 321 (Fla. 4th DCA 2004). See also Long v. Edmundson, 827 So. 2d 365 (Fla. 2d DCA 2002); Johnson v. Brooks, 567 So. 2d 34 (Fla. 1st DCA 1990). We, therefore, reverse and remand with instructions to vacate the injunction entered against Mr. Santiago. REVERSED and REMANDED with instructions. SAWAYA and PALMER, JJ., concur.…
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Russell v. Deidra L. Doughty, 28 So. 3d 169 (Fla. 1st DCA 2010)…and gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction.” Sorin v. Cole, 929 So. 2d 1092, 1094 (Fla. 4th DCA 2006); accord Santiago, 917 So. 2d at 911; Johnson v. Brooks, 567 So. 2d 34, 35 (Fla. 1st DCA 1990). Neighbors should explore and exhaust a variety of alternatives to litigation before bringing a claim under section 748.046 for repeat violence. See Shocki, 994 So. 2d at 1134. Accordingly, the trial court’s final judgments…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Wilson, 276 So. 2d 45 (Fla. 1973)
- Battles v. State, 288 So. 2d 573 (Fla. 2d DCA 1974)
- Broge v. State, 295 So. 2d 302 (Fla. 1974)
- Ford v. State, 295 So. 2d 302 (Fla. 1974)