LEE DROKE, APPELLANT,
v.
CHRISTOPHER ANDINO, APPELLEE
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Lee Droke appeals a final judgment for protection against repeat violence entered by the trial court. The appellate court reversed, holding that the evidence established only one assault rather than the two required by statute, as the second incident involved threats without an overt act creating a well-founded fear of imminent violence.
The court reversed the trial court's judgment. Under § 784.046(l)(b), repeat violence requires two incidents of violence, each involving an overt act creating a well-founded fear that violence is imminent. Here, only one assault was established; the second incident involved mere threats without an overt act demonstrating an apparent ability to do violence or creating well-founded fear of imminent violence.
[1] Repeat violence, as defined by statute, requires proof of two incidents of violence or stalking directed against the petitioner or their immediate family member, with one…
[2] An assault qualifies as an act of violence under Florida's repeat violence statute.
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“two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member”
Establishes the statutory definition of repeat violence requiring two separate incidents
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Join FLexlaw to unlock all legal intelligenceChristopher Andino obtained a final judgment for protection against repeat violence against Lee Droke. The evidence showed that Andino threatened Drok…
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Lee Droke appeals a final judgment for protection against repeat violence entered against him in favor of Christopher Andi-no. Mr. Droke argues that the trial court erred by entering the petition where Mr. Andino only proved one act of violence. We agree.
Section 784.046(l)(b), Florida Statutes (2013) defines repeat violence as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” An assault qualifies as an act of violence under the statute. § 784.046(l)(a), Fla. Stat. (2013). An assault is defined 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. (2013). In other words, “[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.” Johnson v. Brooks, 567 So.2d 34, 35 (Fla. 1st DCA 1990).
In the instant case, the evidence established that Andino threatened Droke on two separate occasions, but -violence appeared imminent on only one occasion. Thus, only one assault was shown. See Russell v. Doughty, 28 So.3d 169, 170 (Fla. 1st DCA 2010) (reversing where evidence of second violent act was respondent yelling profanities and threats, without an indication that respondent threatened to do violence or that he took some action that could have created a well-founded fear that violence was imminent); Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006) (“Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction.”); Gagnard v. Sticht, 886 So.2d 321, 322 (Fla. 4th DCA 2004) (reversing because threat to kill petitioner and “ ‘F’ him up,” without “overt acts indicating an ability to carry out the threats or justifying a belief in [petitioner] that violence was imminent” did not constitute an act of violence); Perez v. Siegel, 857 So.2d 353, 355 (Fla. 3d DCA 2003) (reversing upon finding that although respondent threatened to kill pe*222titioner and her family during a face to face confrontation, petitioner never alleged or proved that respondent had the apparent ability to do so, or that respondent committed any overt act creating well-founded fear that violence was imminent). Accordingly, we reverse and remand with directions that the trial court vacate the injunction and dismiss the petition.
REVERSED and REMANDED with directions.
TORPY, C.J., LAWSON and BERGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Johnson v. Brooks, 567 So. 2d 34 (Fla. 1st DCA 1990)
- Sorin v. Cole, 929 So. 2d 1092 (Fla. 4th DCA 2006)
- Ramon Berenguer, M.D. v. Pub. Health Tr. OF Dade Cnty., 886 So. 2d 321 (Fla. 3d DCA 2004)
- Russell v. Deidra L. Doughty, 28 So. 3d 169 (Fla. 1st DCA 2010)
- Perez v. Siegel, 857 So. 2d 353 (Fla. 3d DCA 2003)