Is Stalking a Felony Charge?

What Is Stalking?

Many individuals have heard the term "stalking" thrown around loosely in conversation, but in reality, there is a firm legal outline that defines the offense. According to Florida Statute 784.048, the state of Florida defines stalking as "a person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person."

Fla. Stat. 784.048(1)(a) defines harass as engaging in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. A course of conduct is defined in 784.048(1)(b) as a pattern of acts over a period of time, however short, which evidences a continuity of purpose, and it expressly excludes constitutionally protected activity such as picketing or other organized protests. A single incident is not stalking. Cyberstalk is defined in Fla. Stat. 784.048(1)(d) and covers two things. The first is a course of conduct communicating, or causing to be communicated, words, images or language by or through electronic mail or electronic communication, directed at or pertaining to a specific person. The second is accessing, or attempting to access, another person's online accounts or Internet-connected home electronic systems without that person's permission, causing substantial emotional distress and serving no legitimate purpose. Tracking someone's location is not in that definition, though depending on the facts it can still count as following or harassing under the main stalking provision.

Unlike laws regarding restraining orders and injunctions in the state of Florida, you do not need to have a specific relationship with another individual to receive stalking charges. Restraining orders and injunctions clearly state, for example, the stipulations for filing an order of protection against domestic abuse and the requirements a person must meet to qualify. Stalking has no relationship requirement. What the State must prove under Fla. Stat. 784.048(2) is that the defendant willfully, maliciously and repeatedly followed, harassed or cyberstalked the other person. A stranger can be charged with stalking. Note also that private citizens do not file criminal charges in Florida: you report the conduct to law enforcement, and the state attorney decides what, if anything, gets filed.

Felony vs. Misdemeanor Stalking in the state of Florida

Asking, "is stalking a felony?" is common among people who find themselves facing charges. The answer is that yes, stalking can be a felony charge under certain circumstances. When looking at the facts of your case, an experienced stalking defense attorney will know precisely what to examine to ensure you are not being charged with an offense that is greater than the one that fits the facts.

Simple Stalking

Plain stalking under Fla. Stat. 784.048(2) is the baseline offense: willfully, maliciously and repeatedly following, harassing or cyberstalking another person, with no credible threat, no injunction in place and no victim under 16. It is a misdemeanor of the first degree.

A first-degree misdemeanor carries up to 1 year in jail under Fla. Stat. 775.082(4)(a) and a fine of up to $1,000 under Fla. Stat. 775.083(1)(d), plus court costs, and a judge can impose probation and counseling alongside or instead of jail. Under Fla. Stat. 784.048(9)(a) the sentencing court must also consider entering an order barring any contact with the victim, which the court may make valid for up to 10 years. Fla. Stat. 784.048(6) allows an officer to arrest without a warrant on probable cause that this section has been violated.

Aggravated Stalking

Aggravated stalking is a third-degree felony, and Fla. Stat. 784.048 creates four separate routes to it:

• Subsection (3): stalking plus a credible threat made to that person.
• Subsection (4): stalking done knowingly after an injunction for protection against domestic violence under Fla. Stat. 741.30, an injunction against repeat violence, sexual violence or dating violence under Fla. Stat. 784.046, or any other court-imposed prohibition of conduct toward that person or that person's property.
• Subsection (5): stalking a child under 16 years of age.
• Subsection (7): stalking the victim of an earlier sentence under Fla. Stat. 794.011, 800.04 or 847.0135(5) while prohibited from contacting that victim under Fla. Stat. 921.244.

Note what subsection (5) says and does not say. It turns on the victim being a child under 16, not on any minor being involved and not on a minor merely being present.

A credible threat is defined in Fla. Stat. 784.048(1)(c) as a verbal or nonverbal threat, or a combination of the two, including one delivered by electronic communication or implied by a pattern of conduct, which places the target in reasonable fear for his or her own safety or the safety of family members or individuals closely associated with the target, and which is made with the apparent ability to carry out the threat. The fear has to be about safety. A threat to damage someone's reputation, or to expose something embarrassing, does not meet that definition. The statute says it is not necessary to prove that the person making the threat intended to actually carry it out.

So the question "is stalking a felony" comes down to four checks. Was the alleged victim a child under 16 years of age? Was an injunction or other court-imposed prohibition of conduct already in place? Was a credible threat to someone's safety made? Was the defendant already barred from contacting this victim under a sentence for a sexual offense? If any answer is yes, the charge can be a felony under Florida law.

In the state of Florida, a third-degree felony charge such as aggravated stalking is punishable by up to five years in prison, fines up to $5,000 plus court fees, probation, and more. More importantly, a felony record will follow you around for the rest of your life, making it challenging to find employment and housing. For this reason, you want an experienced stalking defense attorney on your case.

How to Defend Against Stalking Charges

As with any criminal offense in the United States, if you are facing stalking charges and are wondering "is stalking a felony?" you are innocent until proven guilty, though the courts may grant your accuser a temporary order of protection until an official hearing can take place. The State, not the accuser, brings the case, and the prosecutor has to prove every element beyond a reasonable doubt. That includes the "repeatedly" element and the malicious intent, which is where a stalking case is often weakest. A civil injunction hearing is a separate proceeding with a lower standard of proof, so an injunction being entered against you does not mean a criminal conviction follows.

For example, a person may claim you are following them every morning, but can they show that you are not just following your daily drive to work? Do you live in close proximity to the person and frequent the same places such as the grocery store or gym, just by coincidence? If the prosecutor cannot prove that you are following the accusing party intentionally and with malice, the case may not stand up.

Additionally, if you are facing charges for aggravated stalking with credible threats, does the prosecutor's office have evidence of these threats? Evidence may include recorded voicemails, text messages, e-mails, or eyewitness testimony. All of these things are important in a stalking case.

Get Your Free Case Evaluation

If you are facing stalking charges, do not wait to seek legal help. Evidence in a stalking case is mostly digital: texts, call logs, social media messages, account access records. It gets deleted, overwritten or aged out of a provider's retention window, so the sooner someone starts preserving it, the more of it there is to work with.

Local Florida criminal defense attorney Matt Shafran at Weinstein Legal Team is ready to fight for you. For a free case evaluation, contact Weinstein Legal Team today at 954-845-0505 and begin building your defense.