ROGER LONG, APPELLANT,
v.
CANDICE ELAINE EDMUNDSON, APPELLEE
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The court reversed an injunction for protection against repeat violence because the petitioner failed to establish the statutorily required two incidents of violence or stalking. Although one incident involving a gun and physical contact was sufficient to constitute violence, the threatening phone call did not constitute a qualifying act of violence, leaving only one qualifying act instead of the required two.
The court held that the injunction must be reversed because the petitioner failed to prove two qualifying acts of violence or stalking. While the incident involving the gun and physical contact constituted an act of violence, the threatening phone call did not create a well-founded fear of imminent violence and therefore did not qualify as a second act of violence.
[1] "Repeat violence" under section 784.046, Florida Statutes, requires two incidents of violence or stalking, one of which must have occurred within six months of the petiti…
[2] The definition of "violence" for the purpose of an injunction against repeat violence includes assault, battery, stalking, and other criminal offenses resulting in physic…
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“a person may obtain an injunction for protection in cases involving repeat violence, which is defined as two incidents of violence or stalking directed against the petitioner by the respondent”
Establishes the statutory requirement of two incidents for repeat violence injunction eligibility
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Join FLexlaw to unlock all legal intelligenceRoger Long, a landlord, left a threatening answering machine message on June 20, 2000, warning his tenant Candice Edmundson that if she did not remove…
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CASANUEVA, Judge.
Candice Edmundson successfully petitioned for and obtained an injunction against repeat violence directed toward Roger Long after Mr. Long, her landlord, threatened her for having a large dog in her rented duplex. Because the petition did not allege nor did the record reflect that Mr. Long committed two acts of violence or stalking as required by section 784.046, Florida Statutes (1999), we reverse.
Section 784.046(l)(b) provides that a person may obtain an injunction for protection in cases involving repeat violence, which is defined as two incidents of violence or stalking directed against the petitioner by the respondent. Violence includes assault, battery, stalking, and sexual battery. § 784.046(l)(a); see Russell v. Hogan, 738 So. 2d 1003 (Fla. 2d DCA 1999).
Ms. Edmundson’s petition asserted that two incidents qualified for entry of the repeat violence injunction. First, on June 20, 2000, Mr. Long allegedly called and left a message on the answering machine stating, “You are in violation of the rental agreement because of your dog. If you are not out by June 30th, I will take care of you and your dog.” The second event took place on June 23, 2000, when Ms. Edmundson saw Mr. Long walking around the corner of her duplex. “He was tossing a gun back and forth in his hands.” Her 90-pound dog approached Mr. Long “in a friendly way.” Lastly, the petition asserted that Mr. Long threatened to shoot her dog and then “walked towards me pointing the gun” and “waving it around at me. He then pushed me through the back door pushing me down.”
On this petition the court declined to issue an ex parte temporary injunction. As outlined in Florida Family Law Rule of Procedure 12.610(c)(1)(A), “For the injunction to be issued ex parte, it must appear to the court that an immediate and present danger of domestic or repeat violence exists.” Rather, the court held a hearing at the conclusion of which it issued the permanent injunction Mr. Long now challenges.
At the hearing Ms. Edmundson testified that the incident involving the answering machine did not cause her any fear. In fact, believing the taped message was unimportant, she did not bring it to the hearing. As in Johnson v. Brooks, 567 So. 2d 34, 35 (Fla. 1st DCA 1990), a repeat vio lence case that also involved threatening phone calls, there was no proof of an assault because “the record fails to show that appellant did any act which created a well-founded fear in appellee that violence was imminent .... [T]here must be some overt act sufficient to demonstrate a threat directed at the person placed in fear.”
Although the incident at the duplex in which Mr. Long waved a gun around and pushed Ms. Edmundson is sufficient to constitute an act of violence, it is the only qualifying act of violence either alleged in the petition or proved at the hearing. Thus, there was a total failure of proof that this was a repeat violence situation. See Anderson v. McGuffey, 746 So. 2d 1257, 1258 (Fla. 1st DCA 2000) (citing Russell, 738 So. 2d at 1003). Because the trial court erred in entering the injunction, we reverse.
FULMER and NORTHCUTT, JJ., Concur.
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Citator
Cited By
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Santiago v. Towle, 917 So. 2d 909 (Fla. 5th DCA 2005)…s not constitute an act of violence, unless there is an 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.,…
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Levy v. Jacobs, 69 So. 3d 403 (Fla. 4th DCA 2011)…olence. See Smith v. Melcher, 975 So. 2d 500, 502-03 (Fla. 2d DCA 2007) (“An injunction for protection against repeat violence is properly entered only when there are two incidents of violence within the designated time period.”); Long v. Edmundson, 827 So. 2d 365, 366-67 (Fla. 2d DCA 2002) (holding that although incident in which respondent waved a gun and pushed petitioner was sufficient to constitute an act of violence, the threat on petitioner’s answering machine did not qualify as second incident); see a…
Authorities Cited
- Johnson v. Brooks, 567 So. 2d 34 (Fla. 1st DCA 1990)
- Russell v. Hogan, 738 So. 2d 1003 (Fla. 2d DCA 1999)
- Anderson v. McGUFFEY, 746 So. 2d 1257 (Fla. 1st DCA 2000)