Florida Statutory Criminal Law

  1. Eavesdropping

    1. Introduction

      This provision is the state equivalent of the federal Wiretap Act. The law prohibits the use of recordings obtained through eavesdropping in litigation where those recordings were “intercepted” without the consent of the victim.

    2. Text of Statute(s)

      1. Fla. Stat. § 943.03 – Interception and disclosure of wire, oral, or electronic communications prohibited.1

        (1) Except as otherwise specifically provided in this chapter, any person who:

        (a) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication;

        (b) Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic mechanical, or other device to intercept any oral communication when:

        1. Such device is affixed to, or otherwise transmits a signal through, a wire, cable or other like connection used in wire communication; or

        2. Such device transmits communications by radio or interferes with the transmission of such communication;

        (c) Intentionally discloses, or endeavors to disclose, to any other person, the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

        (d) Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or

        (e) Intentionally discloses, or endeavors to disclose, to any other person, the contents of any wire, oral, or electronic communication intercepted by means authorized by subparagraph 2(a)(2), paragraph (2)(b), paragraph (2)(c), s. 934.07, or s. 934.09 when that person knows or has reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, has obtained or received the information in connection with a criminal investigation, and intends to improperly obstruct, impede or interfere with a duly authorized criminal investigation;

        Shall be punished as provided in subsection (4). . . . 2) Fla. Stat. § 943.06 – Prohibition of use as evidence of intercepted wire or oral communications; exception. Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter. The prohibition of use as evidence provided in this section does not apply in cases of prosecution for criminal interception in violation of the provisions of this chapter.

    3. Cases

      1. State v. Inciarrano, 473 So. 2d 1272 (Fla. 1985)

        • Procedural Posture: On appeal from the lower court’s decision excluding victim’s tape recording of his own murder.

        • Law: Fla. Stat. §§ 943.03. 943.06

        • Facts: Defendant entered someone’s business and shot and killed him. The victim surreptitiously recorded the entire incident without defendant’s knowledge. The recording of the conversation, as well as the sound of gunshots, and the victim’s groans, was admitted as evidence at defendant’s trial for first-degree murder. He moved to suppress the tape under Fla. Stat. § 943.06, arguing that he had not consented to the victim’s recording of their conversation.

        • Outcome: The court held that the recording was admissible against the defendant because the defendant had no reasonable expectation of privacy in the victim’s place of work when he was there with the express intent of committing a crime. “A reasonable expectation of privacy under a given set of circumstances depends upon one’s actual subjective expectation of privacy as well as whether society is prepared to recognize this expectation as reasonable,” and because defendant trespassed onto the premises of another with the intent to do him harm, “the exclusionary rule of Section 934.06 does not apply.”2

        • Special Notes: The concurring opinion noted that the defendant cannot borrow the expectation of privacy afforded to citizens in their own homes/offices and use it to “cloak his own communication.”3

      2. State v. Mozo, 655 So. 2d 1115 (Fla. 1995)

        • Procedural Posture: Florida Supreme Court granted review regarding whether the nonconsensual interception of cordless phone conversations without prior judicial approval violates the Florida Security of Communications Act, Fla. Stat. Chapter 934, as well as the constitutional rights of privacy granted under sections 12 and 23 of the Florida state constitution.

        • Law: Fla. Stat. Chapter 934

        • Facts: Detectives intercepted numerous phone calls between defendants on their cordless home phone and unidentified individuals discussing drug deals. Detectives monitored the frequency and began taping/recording the intercepted phone conversations without a court order because they believed that the Florida statute was inapplicable and that they were entitled to intercept the calls without a warrant. The defendants were arrested for possession of cocaine, marijuana and drug paraphernalia. The trial court denied their motion to suppress the evidence, but the appeals court reversed. The Supreme Court granted review.

        • Outcome: The court affirmed the lower court’s reversal of the respondents’ convictions and remanding for further proceedings because oral communications conducted over a cordless telephone within the privacy of one’s home are protected under Florida’s Security of Communications Act. The court explained that the “oral communication” protected under Chapter 934 was broadly construed, consisting of “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.”4 Because the interceptions in question originated in the defendants’ home in which they were guaranteed a reasonable expectation of privacy, the officers violated the Florida law, and the evidence should have been suppressed accordingly.

        • Special Notes: Because the court determined that Chapter 934 applied, it neglected to consider the constitutional arguments and remanded the case to the trial court for further proceedings.

      3. O’Brien v. O’Brien, 899 So. 2d 1133 (Fla. Dist. Ct. App. 2005)

        • Procedural Posture: Wife moved for rehearing following lower court ruling granting husband’s action for divorce and excluding wife’s evidence of husband’s email/online conversations with another woman captured by spyware she had secretly installed on her husband’s computer.

        • Law: Fla. Stat. § 934.03

        • Facts: In a contentious divorce action, the wife surreptitiously installed spyware on her husband’s computer to intercept and copy electronic communications he was having with another woman. The lower court held the evidence to be inadmissible and she appealed.

        • Outcome: The court affirmed and denied rehearing, determining that the lower court had properly excluded the electronic mail and instant message recordings between the husband and another woman because his wife had illegally intercepted those communications. Although the wife argued that the communications were “stored” before being acquired because the text image was no longer “in transit” when it became visible on the screen, the court disagreed: “We do not believe that this evanescent time period is sufficient to transform acquisition of the communication from a contemporaneous interception to retrieval from electronic storage. We conclude that because the spyware installed by the Wife intercepted the electronic communication contemporaneously with transmission, copied it, and routed the copy to a file in the computer’s hard drive, the electronic communications were intercepted in violation of the Florida Act.”5

        • Special Notes: The court distinguished between a spyware program that simply breaks into a computer and retrieves information, and one that is installed on a computer to copy a communication “as it is transmitted” and route the copy to a storage file in the computer.6

      4. Guilder v. State, 899 So. 2d 412 (Fla. Dist. Ct. App. 2005)

        • Procedural Posture: On appeal from defendant’s lower court conviction of unlawfully intercepting/endeavoring to intercept an oral communication.

        • Law: Fla. Stat. § 934.03

        • Facts: Father of a convicted murderer believed there had been juror misconduct at his son’s trial. He sought to interview the former jurors and tried to record his conversations without the jurors’ knowledge. The government charged him with a violation of Fla. Stat. § 934.03.

        • Outcome: The court affirmed the lower court’s ruling and held that the recording of a face-to-face conversation in which one is a participant without prior consent from all participants is an unlawful interception of an oral communication.

        • Special Notes: The court also highlighted the strange posture of the case: “As a further note, we cannot help but express our concern that the illegally recorded conversations were of interviews conducted by [defendant], without judicial approval, of jurors who had sat on his son’s burglary trial. In this age of high-profile celebrity trials such as O.J. Simpson and Michael Jackson, media attention on all participants in such trials, including the jurors, has heightened significantly. Even where judges wisely order that jurors should not be mentioned by name, the media nonetheless focus on the racial, ethnic and gender make-up of such juries, as well as whatever background information on the jurors they might obtain. Needless to say, prospective jurors who might otherwise seek to avoid this responsibility of citizenship now have but one more reason to feel jury duty should be avoided at all costs. If the recording of conversations with would-be batterers and murderers is prohibited, surely the recordings [defendant] obtained in this case under the false principles of wearing a press badge should be dealt with every bit as severely.”7

    4. Practice Pointers

      Nothing relevant at this time.

    1. Only the most relevant subsections of the statute are listed here. 

    2. State v. Inciarrano, 473 So. 2d 1272, 1275-76 (Fla. 1985). 

    3. Id. at 1276 (J. Overton, concurring). 

    4. Fla. Stat. § 934.02(2). 

    5. O’Brien v. O’Brien, 899 So. 2d 1133, 1137 (Fla. Dist. Ct. App. 2005). 

    6. Id. 

    7. Guilder v. State, 899 So. 2d 412, 419 (Fla. Dist. Ct. App. 2005). 

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  2. Threats/Extortion

    1. Introduction

      A person who publishes or threatens to publish intimate photos or videos of another with the intention of forcing the victim into conduct the victim would not have otherwise performed may be charged with extortion.

    2. Text of Statute

      1) Fla. Stat. § 836.05 – Threats; extortion Whoever, either verbally, or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the second degree. . . .

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      Extortion is threatening (verbally or written) to injure someone, their property, or their reputation or threatening to expose secrets/disgrace someone in order to gain money, or to force the alleged victim to do something. Threats/extortion is a second degree felony, and is punishable by up to thirty years in prison and fines of up to $10,000.

      To prove extortion, “it is incumbent upon the prosecution to show that there was a malicious threat of injury against a person, which was communicated . . . for the purpose of compelling that person to commit an act or to refrain from acting against his will.”1 However, “[n]either the actual intent to do harm nor the ability to carry out the threat is essential to prove that extortion occurred.”2

      There is no crime of “attempted extortion.”3

      Florida punishes the crime of extortion for threats to a family member of the victim too: “The nature of the entity against whom the threat is primarily directed is of importance only in determining whether such a relationship exists between the entity and the person to whom the threat is communicated as would be calculated to coerce the victim to meet the demands of the extortioner in order to prevent the threat from being carried out. It therefore, is of no consequence whether the threat is primarily directed against the victim himself, his loved ones, his friends, or a corporation with which he is actively identified and in which he owns an interest.”4

      A violation of this statute does not give rise to a separate civil action for damages.5

    1. Dudley v. State, 634 So. 2d 1093, 1094 (Fla. Dist. Ct. App. 1994). 

    2. Id. 

    3. Achin v. State, 436 So. 2d 30, 31 (Fla. 1982). 

    4. State v. McInnes, 153 So. 2d 854, 858 (Fla. Dist. Ct. App. 1963). 

    5. Miami Herald Publ’g Co., Div. of Knight-Ridder Newspaper, Inc. v. Ferre, 636 F. Supp. 970, 976 (S.D. Fla. 1985). 

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  3. Stalking

    1. Introduction

      In situations in which a WMC victim is repeatedly harassed, the State may charge a defendant with stalking. “Course of conduct” as defined by the statute means “ a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.1 Stalking is a “series of actions that, when taken individually, may be perfectly legal.”2 This law may come into apply to situations of cyberstalking and cybercrime, both of which are becoming increasingly common, and the statute specifically encompasses and defines the term “cyberstalk.”3

    2. Text of Statute

      1. Fla. Stat. § 748.08 - Stalking; definitions; penalties4

        (1) The term:

        (a) “Harass” means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.

        (b) “Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of “course of conduct.” Such constitutionally protected activity includes picketing or other organized protests.

        (c) “Credible threat” means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.

        (d) “Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or languages by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

        (2) Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.

        (3) Any person who willfully, maliciously, and repeatedly follows, harasses or cyberstalks another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person, or the aggravated stalking, a felony of the third degree, punishable as provided in §§ 775.082, 775.083, and 775.084. . . .

    3. Cases

      1. Goosen v. Walker, 714 So. 2d 1149 (Fla. Dist. Ct. App. 1998)

        • Procedural Posture: On appeal from decision granting plaintiffs injunctive relief against their neighbor to prevent neighbor from photographing or videotaping plaintiffs, or pretending to do so

        • Law: Fla. Stat. § 748.08

        • Facts: The parties were neighbors who had an adversarial relationship, and they had both previously obtained mutual injunctions against repeat violence. Defendant neighbors received an order enjoining plaintiff from photographing or videotaping them in their own yard or adjoining area. On appeal, defendants argued that the injunction violated the First Amendment.

        • Outcome: Affirming the injunction because behavior that constitutes “stalking” under the Florida laws is not constitutionally protected activity, and there was “evidence to support the finding implicit in the injunction that [the defendant neighbors’] conduct constitute[d] stalking.”5

    4. Practice Pointers

      As noted above, harassment/stalking, etc. require a defendant’s intentional misconduct.

      Florida law requires that a plaintiff alleging “harassing” or “stalking” plead allegations of “repeated acts” of violence, etc.6 Accordingly, a WMC plaintiff must offer evidence of a defendant’s repeated conduct. Stalking that causes substantial emotional stress to the alleged victim and serves no legitimate purpose is a first degree misdemeanor punishable by up to one year in jail and fines of up to $1,000. A plaintiff may bring a charge of aggravated stalking where a defendant’s actions include a “credible threat with the intent to put [the plaintiff] in reasonable fear of death or bodily injury,” and the threat can also be toward a plaintiff’s family member. Aggravated stalking is considered a third degree felony and is punishable by up to fifteen years in prison and fines of up to $10,000. Where a defendant commits stalking in violation of an injunction for protection (such as a restraining order), it will immediately be considered aggravated stalking even if there is no threat made.

    1. Constitutionally protected course or pattern of conduct made up of a series of acts over time, however short, evidencing a continuity of purpose.  Constitutionally protected activity is not included within the meaning of “course of conduct,” and it includes picketing and other organized protests.  Fla. Stat. § 784.048. 

    2. St. Fort v. State, 943 So. 2d 314 (Fla. Dist. Ct. App. 2005). 

    3. See Fla. Stat. § 748.08(1)(d) (defining “Cyberstalk”). 

    4. Only the most relevant subsections of the statute are included. 

    5. Goosen v. Walker, 714 So. 2d 1149 (Fla. Dist. Ct. App. 1998). 

    6. See Smith v. Melcher, 975 So. 2d 500, 502 (Fla. Dist. Ct. App. 2007) (reversing injunction against repeated violence and holding that single act “did not constitute stalking because the statute requires repeated acts”); see Polanco v. Cordeiro, 67 So. 3d 235, 237 (Fla. Ct. App. 2010) (reversing injunction against repeated violence and holding that a “single incident would not support a finding of harassment which requires a course of conduct comprised of a series of acts”). 

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  4. Menacing

    1. Introduction

      In situations in which a WMC victim is harassed (either “electronically” or otherwise), the State may charge a defendant with criminal harassment. It may be particularly apt in situations of cyberstalking and cybercrime, both of which are becoming increasingly common.

    2. Text of Statute

      1) Fla. Stat. § 836.10 – Written threats to kill or do bodily injury; punishment – Any person who writes or composes and also sends or procures the sending of a letter, inscribed communication, or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent commits a felony of the second degree. . . .

    3. Cases

      1. Saidi v. State, 845 So. 2d 1022 (Fla. Dist. Ct. App. 2003)

        • Procedural Posture: Defendant appealed from conviction by jury of violation of Fla. Stat. § 836.10 for sending written threats of death or bodily injury.

        • Law: Fla. Stat. § 836.10

        • Facts: Defendant was charged with violating the statute in question after sending various letters and papers to William Roy, the attorney representing defendant’s former wife in a contentious post-judgment family law proceeding, and to the Circuit Court of Seminole County, Florida. While conceding that he authored and sent letters and papers, Saidi argued that the statute was unconstitutionally vague and overbroad and that it infringed on his First Amendment rights. Saidi also appealed based on his claim that the trial court erred in its instructions to the jury, and by prohibiting him from filing any pro se pleadings or papers in the future as a condition of his probation.

        • Outcome: The appeals court affirmed the judgment and conviction. The court cited authority upholding statute’s constitutionality, and noted that threats to injure/kill have no First Amendment protection.1 Moreover, the court explained that the crime did not require the actual intent to do harm or the ability to carry out the threat, such that the court’s jury instructions were on point.2 Finally, the court affirmed the trial court’s probation requirement that Saidi not file any pro se pleadings in any civil or family litigation going forward because Saidi failed to contemporaneously object to the probation condition, and because probation is a matter of judge discretion.3

        • Special Notes: The court explained the elements of Section 836.10 as follows: “(1) a person writes or composes a threat to kill or do bodily injury; (2) the person sends or procures the sending of that communication to another person; and (3) the threat is the recipient of the communication or a member of his family. . . [and] this crime does not require the actual intent to do harm or the ability to carry out the threat.”4

    4. Practice Pointers

      Nothing relevant at this time.

    1. Saidi, 845 So. 2d at 1026. 

    2. Id. at 1027. 

    3. Id. at 1028. 

    4. Id. at 1027 (citations omitted). 

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  5. Obscene or Harassing Telephone Phone Calls

    1. Introduction

      A WMC victim who has been harassed over the telephone may bring a claim of telephone harassment. In the context of a WMC victim, if someone has taken unauthorized photos of the victim, they could be harassed on the telephone with threats to make those images public. This statute may also come into play where the harassing phone contact involves text messages of unauthorized images.

    2. Text of Statute

      1. Fla. Stat. § 365.16 – Obscene or harassing telephone calls.

        (1) Whoever:

        (a) Makes a telephone call to a location at which the person receiving the call has a reasonable expectation of privacy; during such call makes any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, vulgar, or indecent; and by such call or such language intends to offend, annoy, abuse, threaten or harass any person at the called number;

        (b) Makes a telephone call, whether or not conversation ensues, without disclosing his or her identity and with intent to annoy, abuse, threaten or harass any person at the called number;

        (c) Makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or

        (d) Makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, or s. 775.083.

        (2) Whoever knowingly permits any telephone under his or her control to be used for any purpose prohibited by this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, or s. 775.083.

        (3) Each telephone directory hereafter published for distribution to the members of the general public shall contain a notice which explains this law; such notice shall be printed in type which is so smaller than the smallest type on the same page and shall be preceded by the word “warning.” The provisions of this section shall not apply to directories solely for business advertising purposes, commonly known as classified directories.

        (4) Each telephone company in this state shall cooperate with the law enforcement agencies of this state in using its facilities and personnel to detect and prevent violations of this section.

        (5) Nothing contained in this section shall apply to telephone calls made in good faith in the ordinary course of business or commerce.

    3. Cases

      1. Stoddard v. Wohlfahrt, 573 So. 2d 1060 (Fla. Dist. Ct. App. 1991)

        • Procedural Posture: On appeal from lower court action dismissing plaintiff’s invasion of privacy claim arising from dispute after a small claims action that followed a fender bender between the parties

        • Law: Invasion of privacy; Fla. Stat. § 365.16; Intentional infliction of emotional distress

        • Facts: The parties had a fender bender, and following the small claims action that arose after the accident, the matter was overshadowed by a heated telephone conversation between the parties which led defendant to leave two threatening messages on plaintiff’s answering machine—the first stating “You’re mine,” and the second inviting defendant to perform a sexual act on plaintiff’s person. Plaintiff amended his original single count small claims court action to include an action for intentional infliction of emotional distress. The lower court dismissed the count following a hearing, but allowed plaintiff to file a second amended claim, which also alleged damages for defendant’s violation of Section 365.16, which makes it a second-degree misdemeanor to make an “obscene, lewd, or lascivious comment, request, suggestion, or proposal in a telephone call to a person receiving the call who has a reasonable expectation of privacy.”1 After a second dismissal, plaintiff filed a third amended complaint, changing his theory from a violation of Section 365.16 to one based on an invasion of privacy.

        • Outcome: The court affirmed the lower court’s dismissal of plaintiff’s claim of invasion of privacy because defendant’s behavior was not outrageous enough to constitute a violation of plaintiff’s right to privacy: “All will admit that some intrusions into one’s personal life are so indecent and outrageous and calculated to cause such excruciating mental pain to all but the most callous that it would be a reproach to the law not to allow redress. On the other hand, it is equally clear that society cannot protect the . . . thin-skinned against trivial invasions of privacy that the normal person suffers with equanimity. The mores and the law must distinguish one from the other.”2

        • Special Notes: The court contrasted Stoddard’s facts with those of other invasion of privacy cases brought in Florida in which a defendant continually and repeatedly harassed defendant.3

    4. Practice Pointers

      There may also be claims under this statute when the harassment takes place on mobile phones or Voice-Over-IP (VOIP) services (like Skype, Vonage and others) that act as telephones, even though they are not “traditional” landline phone services.

    1. Stoddard v. Wohlfhart, 573 So. 2d 1060, 1061 (Fla. Dist. Ct. App. 1991). 

    2. Id. at 1062. 

    3. Id. (“We view the continuing contacts in Kent as much more offensive than the two rapid succession contacts allegedly made by Wohlfart, although there is no doubt that the two contacts were socially inexcusable.”). 

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  6. Trespass

    1. Introduction

      Florida observes a cause of action for criminal trespass. This could be relevant if the perpetrator trespassed or installed technology that was tantamount to trespass in procuring images.

    2. Text of Statute

      1. Fla. Stat. § 810.08 – Trespass in Structure or conveyance.

        (1) Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.

        (2) (a) Except as otherwise provided in this subsection, trespass in a structure or conveyance is a misdemeanor of the second degree . . . (b) If there is a human being in the structure or conveyance at the time the offender trespassed, attempted to trespass, or was in the structure or conveyance, the trespass in a structure or conveyance is a misdemeanor of the first degree. . . . (c) If the offender is armed with a firearm or other dangerous weapon, or arms himself or herself with such while in the structure or conveyance, the trespass in a structure or conveyance is a felony of the third degree. . . . Any owner or person authorized by the owner may, for prosecution purposes, take into custody and detain, in a reasonable manner, for a reasonable length of time, any person when he or she reasonably believes that a violation of this paragraph has been or is being committed or is committing such violation. In the event a person is taken into custody, a law enforcement officer shall be called as soon as is practicable after the person has been taken into custody. The taking into custody and detention by such person, if done in compliance with the requirements of this paragraph, shall not render such person criminally or civilly liable for false arrest, false imprisonment or unlawful detention.

        (3) As used in this section, the term “person authorized” means any owner or lessee, or his or her agent, or any law enforcement officer whose department has received written authorization from the owner or lessee, or his or her agent, to communicate an order to depart the property in the case of a threat to public safety or welfare.

    3. Cases

      1. Jones v. State, 666 So. 2d 960 (Fla. Dist. Ct. App. 1996)

        • Procedural Posture: Defendant appeals from jury conviction of trespass in a conveyance and grand theft of a motor vehicle

        • Law: Fla. Stat. § 810.08

        • Facts: Jury convicted defendant Jones of third-degree felony of grand theft of a motor vehicle (Fla. Stat. § 810.14) as well as the lesser included offense of trespass in a conveyance. Defendant appealed arguing that the trial court should not have instructed the jury on the category 2 permissive lesser included offense instruction. The court has, in effect, held that the misdemeanor of trespass in a conveyance is a category 2 permissive lesser included offense within the charged offense of grand theft of a motor vehicle because it is “not an essential ingredient of the major offense” charged in that its statutory elements are not entirely subsumed within the statutory elements of the major charged offense.”1

        • Outcome: The court affirmed the conviction holding that there was no reversible error in the court’s refusal to give a jury instruction on the lesser included offense. The elements of trespass in a conveyance and grand theft of a motor vehicle overlap except for that trespass in a conveyance also requires “the willful entry or remaining [in the conveyance or motor vehicle],” while grand theft of a motor vehicle requires the accused to “obtain[ ] or use[ ]” the car, or “endeavor” to do so without requiring the actual entry or remaining in the vehicle. Thus, “trespass in a conveyance is, as we have held, a category 2 permissive lesser included offense of the greater or charged offense of grand theft of a motor vehicle.”2 The trial court properly charged the jury, and the court affirmed the final judgment of conviction and sentence.

        • Special Notes: Fla. Stat. § 810.011 defines the term “conveyance” to mean “any motor vehicle,” among other things.3

      2. Florida Publ’g Co. v. Fletcher, 340 So. 2d 914 (Fla. 1976)

        • Procedural Posture: Before the Florida Supreme Court on a petition for a writ of certiorari to review the lower court’s decision, which conflicted with Jacova v. S. Radio & Television Co.4

        • Law: Trespass; Invasion of privacy; Intentional infliction of emotional distress

        • Facts: The trial court granted summary judgment in favor of the Florida Times Union for publishing a photograph of the “silhouette” of a teenager’s body lying on the floor after a fatal fire at her mother’s house. The teenager’s mother did not know about the fatal fire until she saw the photographs published in the newspaper. She sued for invasion of privacy. The court noted that the fire marshal had invited the news media onto the premises and had requested specifically that the photographer take a photograph of the silhouette.

        • Outcome: The court quashed the portion of the lower court’s decision reversing summary judgment for petitioner as to her claim of trespass, and remanded the case for further proceedings. The court held that the trial court properly granted summary judgment because implied consent can arise from custom, usage, or conduct, and news media customarily enter upon private property where a disaster has occurred: “Due to such widespread and long-standing custom, reason and logic support the application of implied consent to enter the premises in the case before us. It, therefore, was not a trespass, and I would affirm the trial court.”5 The court also noted that no one at the scene objected to the photographer’s entry.

        • Special Notes: The Florida Supreme Court did not determine Fletcher on the basis that the press had a constitutional right to be present at the scene of the disaster, because the United states Supreme Court has held that “[n]ewsmen have no constitutional right to the scenes of crime or disaster when the general public is excluded.”6

    4. Practice Pointers

      Although Florida recognizes claims of criminal trespass, “it has been a long-standing custom and practice throughout the country for representatives of the news media to enter upon private property where a disaster of great public interest has occurred—entering in a peaceful manner, without causing any physical damage, and at the invitation of the officers who are investigating the calamity.” 7

    1. Jones v. State, 666 So. 2d 960, 963 (Fla. Dist. Ct. App. 1996). 

    2. Id. at 964. 

    3. Fla. Stat. § 810.011. 

    4. 83 So. 2d 34 (Fla. 1955). 

    5. Florida Publ’g Co. v. Fletcher, 340 So. 2d 914, 918 (Fla. 1977). 

    6. Branzburg v. Hayes, 408 U.S. 665, 684-85 (1972). 

    7. Fletcher, 340 So. 2d at 918; but see Green Valley Sch. Inc. v. Cowles Florida Broad., Inc., 327 So. 2d 819, 819 (Fla. Dist. Ct. App. 1976) (“Common usage and custom” did not provide implied consent where television crew accompanied law enforcement officers when they staged a midnight raid on private boarding school, entering students’ sleeping quarters without prior warning or consent). 

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  7. Voyeurism

    1. Introduction

      A person may be charged with voyeurism if he or she invades the privacy of another by recording the victim without the victim’s knowledge or consent with “lewd intent.”1 A WMC victim whose rights are violated in this manner should report the incident to law enforcement,, who will be able to charge the perpetrator accordingly.

    2. Text of Statute(s)

      1. Fla. Stat. Ann. § 810.14 – Voyeurism prohibited; Penalties.

        (1) A person commits the offense of voyeurism when he or she, with lewd, lascivious, or indecent intent, secretly observes another person when the other person when the other person is located in a dwelling, structure, or conveyance and such location provides a reasonable expectation of privacy.

        (2) A person who violates this section commits a misdemeanor of the first degree for the first violation punishable as provided in s. 775.082 or s. 775.083.

        (3) A person who violates this section and who had been previously convicted or adjudicated delinquent two or more times of any violation of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or 775.084.

        (4) For purposes of this section, a person has been previously convicted or adjudicated delinquent of a violation of this section if the violation resulted in a conviction sentenced separately, or an adjudication of delinquency entered separately prior to the current offense.

      2. Fla. Stat. Ann. § 810.145 – Video voyeurism.

        (1) As used in this section, the term:

        (a) “Broadcast” means electronically transmitting a visual image with the intent that it be viewed by another person.

        (b) “Imaging device” means any mechanical, digital, or electronic viewing device; still camera; camcorder; motion picture camera; or any other instrument, equipment, or format capable of recording, storing, or transmitting visual images of another person.

        (c) “Place and time when a person has a reasonable expectation of privacy” means a place and time when a reasonable person would believe that he or she could fully disrobe in privacy, without being concerned that the person’s undressing was being viewed, recorded or broadcasted by another including, but not limited to, the interior of a bathroom, changing room, fitting room, dressing room, or tanning booth.

        (d) “Privately exposing the body” means exposing a sexual organ.

        (2) A person commits the offense of video voyeurism if that person:

        (a) For his or her own amusement, entertainment, sexual arousal, gratification, or profit, or for the purpose of degrading or abusing another person, intentionally uses or installs an imaging device to secretly view, broadcast, or record a person, without that person’s knowledge and consent, who is dressing, undressing, or privately exposing the body, at a place and time when that person has a reasonable expectation of privacy;

        (b) For the amusement, entertainment, sexual arousal, gratification, or profit of another, or on behalf of another, intentionally permits the use of installation of an imaging device to secretly view, broadcast, or record a person, without that person’s knowledge and consent, who is dressing, undressing, or privately exposing the body, at a place and time when that person has a reasonable expectation of privacy; or

        (c) For the amusement, entertainment, sexual arousal, gratification, or profit of oneself or another, or on behalf of oneself or another, intentionally uses an imaging device to secretly view, broadcast, or record under or through the clothing being worn by another person, without that person’s knowledge and consent, for the purpose of viewing the body of, or the undergarments worn by, that person.

        (3) A person commits the offense of video voyeurism dissemination if that person, knowing or having reason to believe that an image was created in a manner described in this section, intentionally disseminates, distributes, or transfers the image to another person for the purpose of amusement, entertainment, sexual arousal, gratification, or profit, or for the purpose of degrading or abusing another person.

        (4) A person commits the offense of commercial video voyeurism dissemination if that person:

        (a) Knowing or having reason to believe that an image was created in a manner described in this section, sells the image for consideration to another person; or

        (b) Having created the image in a manner described in this section, disseminates, distributes or transfers the image to another person for that person to sell the image to others.

        (5) This section does not apply to any:

        (a) Law enforcement agency conducting surveillance for a law enforcement purpose;

        (b) Security system when a written notice is conspicuously posted on the premises stating that a video surveillance system has been installed for the purpose of security for the premises;

        (c) Video surveillance device that is installed in such a manner that the presence of the device is clearly and immediately obvious; or

        (d) Dissemination, distribution, or transfer of images subject to this section by a provider of an electronic communication service as defined in 18 U.S.C. s. 2510(15), or a provider of a remote computing service as defined in 18 U.S.C. s. 2711(2). For purposes of this section, the exceptions to the definition of “electronic communication” set forth in 18 U.S.C. s. 2510(12)(a), (b), (c), and (d) do not apply, but are included within the definition of the term.

        (6) Except as provided in subsection (7), a person who violates this section commits a misdemeanor of the first degree. . .

        (7) A person who violates this section and who has previously been convicted of or adjudicated delinquent for any violation of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084;

        (8) For purposes of this section, a person has previously been convicted of or adjudicated delinquent for a violation of this section if the violation resulted in a conviction that was sentenced separately, or an adjudication of delinquency entered separately, prior to the current offense.

    3. Cases

      1. Garcia v. Johnson & Wales Univ., No. 09-21545-CIV, 2009 WL 4348338 (S.D. Fla. Dec. 1, 2009)

        • Procedural Posture: On University defendant’s motion for summary judgment arising from plaintiff’s suit against University, his former employer, alleging wrongful termination in retaliation for reporting wrongful action committed by police officer at the University’s dormitory (a Whistle Blower action). Although procedurally this is a civil case, the criminal statute is addressed by the court.

        • Law: Fla. Stat. § 810.145; Florida Whistleblower Act (Fla. Stat. § 448.102(3))

        • Facts: Plaintiff, a former University employee, alleged that he was wrongfully terminated under Florida’s Whistleblower Act after he reported that a Miami police officer had been illegally videotaping sexual activities with women in one of the University’s dorm room without their consent. Defendant argued that it had terminated plaintiff after he had violated the dean of student’s instructions not to speak about the investigation while it was occurring, and because he abandoned his post without permission, putting the school at risk for a security breach.

        • Outcome: The court granted summary judgment to the defendant because plaintiff failed to show that he had engaged in a statutorily-protected activity when he reported the alleged illegal videotaping, because he could not offer sufficient evidence to show that the police officer was actually videotaping his sexual encounters with women without their consent and, therefore, could not “prove that the act of videotaping a sex act without the participant’s consent was illegal.”2 And without illegality, there could be no Whistleblower Act violation.

    4. Practice Pointers

      Nothing relevant at this time.

    1. Fla. Stat. Ann.§ 810.14(1). 

    2. Garcia v. Johnson & Wales Univ., No. 09-21545-CIV, 2009 WL 4348338, at *4 (S.D. Fla. Dec. 1, 2009). 

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  8. Hate Crimes

    1. Introduction

      Where a victim is specifically targeted because of his or her race, color, religion, ancestry, nationality, gender, sexual orientation, or mental, physical or sensory handicaps, this statute may provide relief. The laws provide for the reclassification of any felony or misdemeanor, including property crimes, where the commission of the offense “evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, mental or physical disability, or advanced age of the victim.”1 The law has mostly been used in the context of religious or race-related crimes. It creates a civil remedy allowing the recovery of treble damages,2 and mandates the collection and dissemination by the governor of data on “incidents of criminal acts that evidence prejudice based on” the categories listed in Section 775.085(1)(a).3

    2. Text of Statute(s)

      1. Fla. Stat. § 877.19 – “Hate Crimes Reporting Act.”

        (1) Short title – This section may be cited as the “Hate Crimes Reporting Act.”

        (2) Acquisition and publication of data – The Governor, through the Florida Department of Law Enforcement, shall collect and disseminate data on incidents of criminal acts that evidence prejudice based on race, religion, ethnicity, color, ancestry, sexual orientation or national origin. All law enforcement agencies shall report monthly to the Florida Department of Law Enforcement concerning such offenses in such form and in such manner as prescribed by rules adopted by the department. Such information shall be compiled by the department and disseminated upon request to any local law enforcement agency, unit of local government, or state agency.

        (3) Limitation on use and content of data – Such information is confidential and exempt from S. 119.07(1). Data required pursuant to this section shall be used only for research or statistical purposes and shall not include any information that may reveal the identity of an individual victim of a crime.

        (4) Annual Summary – The Attorney General shall publish an annual summary of the data required pursuant to this section.

      2. Fla. Stat. § 775.085 – Evidencing prejudice while committing offense; reclassification.

        (1) ( )The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, mental or physical disability, or advanced age of the victim:

        A misdemeanor of the second degree is reclassified to a misdemeanor of the first degree. A misdemeanor of the first degree is reclassified to a felony of the third degree. A felony of the third degree is reclassified to a felony of the second degree. A felony of the second degree is reclassified to a felony of the first degree. A felony of the first degree is reclassified to a life felony. ( )As used in paragraph (a), the term:

        1. “Mental or physical disability” means that the victim suffers from a condition of physical or mental incapacitation due to a development disability, organic brain damage, or mental illness, and has one or more physical or mental limitations that restrict the victim’s ability to perform the normal activities of daily living.

        2. “Advanced age” means that the victim is older than 65 years of age.

        3. “Homeless status” means that the victim: a. Lack a fixed, regular, and adequate nighttime residence; or b. Has a primary nighttime residence that is: (i) A supervised publicly or privately operated shelter designed to provide temporary living accommodations; or (ii) A public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.

        (2) A person or organization that establishes by clear and convincing evidence that it has been coerced, intimidated, or threatened in violation of this section has a civil cause of action for treble damages, an injunction, or any other appropriate relief in law or in equity. Upon prevailing in such civil action, the plaintiff may recover reasonable attorney’s fees and costs.

        (3) It is an essential element of this section that the record reflect that the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated in this section.

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      Because the Florida hate crimes laws relate only to the harassment or mistreatment of certain groups of minorities, a WMC victim may bring a claim under the hate crimes statute alongside various other claims for stalking, etc. However, it is unlikely that a WMC victim will bring a claim under this law by itself.

    1. Fla. Stat. § 775.085(1)(a). 

    2. Id. § 775.085(2). 

    3. Id. § 877.19. 

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