STACY SMITH, APPELLANT,
v.
PHILIP MANNO, APPELLEE

Fla. 5th DCA | 2014-05-16
No. 5D13-3179
PALMER and LAWSON, JJ., concur.
138 So. 3d 1143 Florida District Court of Appeal, Fifth District (2014) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Stacy Smith appealed the dismissal of her petition for a domestic violence injunction against Philip Manno. The trial court dismissed the petition without holding an evidentiary hearing, citing pending criminal charges against Manno with bond conditions already protecting Smith. The appellate court reversed, holding that Smith was entitled to an evidentiary hearing because her petition alleged sufficient facts establishing reasonable fear of imminent domestic violence.


Holding

The court reversed the dismissal and held that when a petition for domestic violence injunction alleges facts sufficient to establish that the petitioner has reasonable cause to believe she is in imminent danger of becoming a victim of domestic violence, the trial court must hold an evidentiary hearing pursuant to section 741.80(4), Florida Statutes. The existence of pending criminal charges with protective bond conditions does not abrogate the petitioner's right to the protections afforded by the domestic violence injunction statute.


Headnotes

[1] A trial court must hold an evidentiary hearing on a petition for injunction for protection against domestic violence if the petition alleges facts sufficient to establish…

[2] The existence of a pending criminal case with bond conditions prohibiting contact does not abrogate a petitioner's right to seek an injunction for protection against dome…

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Key Quotes

“if the petition alleged either that the petitioner had reasonable cause to believe that she is in imminent danger of becoming a victim of domestic violence, or that the petitioner has been a victim of domestic violence, then the court must hold a hearing on the petition at the earliest possible time.”

Establishes the mandatory hearing requirement under section 741.80(4), Florida Statutes

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Facts & Procedural History

Smith filed a petition for domestic violence injunction on behalf of herself and her minor daughter against Manno. She alleged that after Manno's invo…

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Opinion of the Court
COHEN, J.

COHEN, J.

Stacy Smith appeals from the final order dismissing her petition for injunction for protection against domestic violence. In pertinent part, she argues that the trial court erred by dismissing the petition without first holding an evidentiary hearing. We agree and reverse.

Smith, on behalf of herself and her minor daughter, A.S.M., filed a petition for injunction for protection against domestic violence against Philip Manno. In the petition, Smith alleged that after Manno was involuntarily hospitalized for attempting suicide, he made repeated phone calls threatening to kill her. Upon his release, Manno went to Smith’s mother’s house, where he behaved irrationally and screamed obscenities. Smith alleged that Manno had previously threatened to hurt her, citing a prior incident in which Manno had beaten and choked her until she almost lost consciousness. Because this earlier event had occurred in AS.M.’s presence, Smith feared for her child’s safety. Smith further alleged that she feared for A.S.M.’s safety because she had recently discovered child pornography on Manno’s cell phone and learned that he was a registered sex offender. Based upon these allegations, the court entered a temporary injunction against Manno.

A return hearing was set on Smith’s petition. Smith appeared pro se, while Manno appeared with counsel. Upon being informed that Manno had a pending criminal ease in which the conditions of his bond prohibited any contact with Smith, the court dismissed the petition for injunction, informing Smith that “[tjhere is no good reason to have two of these at the same time,” and that “if the protection [of the conditions of Manno’s bond] goes away and you still feel you want an injunction you can file another one.” Smith timely appealed the final order dismissing her petition.

The issue raised on appeal is not an issue of first impression in our court. In Curtis v. Curtis, 113 So.3d 993 (Fla. 5th DCA 2013), we addressed a similar issue. *1144There, the trial court denied a petition for injunction for protection against domestic violence, without first holding an evidentia-ry hearing, where there was a pending criminal case against the respondent in which the conditions of the respondent’s release were designed to protect the petitioner from domestic violence. The trial court concluded that the petitioner had failed to establish a reasonable fear of imminent domestic violence, noting that the conditions of release, which included electronic monitoring, were more restrictive than the restrictions that could be imposed pursuant to a domestic violence injunction. We reversed, emphasizing that, pursuant to section 741.80(4), Florida Statutes, if the petition alleged either that the petitioner had reasonable cause to believe that she is in imminent danger of becoming a victim of domestic violence, or that the petitioner has been a victim of domestic violence, then the court must hold a hearing on the petition at the earliest possible time. Because the petition had, in fact, alleged facts sufficient to establish that the petitioner had reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence, the trial court erred in denying the petition without first holding a hearing.1

In this case, Smith’s petition alleged facts sufficient to establish that she had a reasonable fear of imminent domestic violence. Thus, she was entitled to an evi-dentiary hearing. If Smith meets her burden of proof at the hearing, the existence of a pending criminal case with bond conditions that prohibit contact does not abrogate her right to the protections afforded by section 741.80, Florida Statutes. Accordingly, we reverse the order dismissing Smith’s petition and remand for an eviden-tiary hearing.

REVERSED and REMANDED.

PALMER and LAWSON, JJ., concur.


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Citator

Cited By

  • Donesha Hawthorne v. Butler, 151 So. 3d 23 (Fla. 4th DCA 2014)
    …t with the victim.” Because this issue may arise at the subsequent hearing, we note that this is not a legally sufficient justification for denying such a petition. Although it considered a different statute, we find the reasoning of Smith v. Manno, 138 So. 3d 1143 (Fla. 5th DCA 2014) equally applicable here, in that a probation condition of no contact would not abrogate appellant’s right to obtain a sexual violence injunction under section 784.046, Florida Statutes (2014). Such a condition is standard for sex…

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