Amendments to 836.10

1. O'Leary v. State

   109 So. 3d 874 (Fla. Dist. Ct. App. 2013)   Cited 14 times

   • Motion to dismiss

   We have for review the trial court's denial of Timothy Ryan O'Leary's motion to dismiss the two counts of sending written threats to kill or do bodily harm in violation of section 836.10, Florida Statutes (2011). Appellant argues that, because the threats at issue were simply posted on his personal Facebook page, the threats were not “sent” to the alleged victims as required by the statute. Thus, he asserts, he did not violate the statute. Because we hold that, under the circumstances of this case, appellant violated section 836.10 by posting the threats on his Facebook page, we affirm.

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2. Saidi v. State

   845 So. 2d 1022 (Fla. Dist. Ct. App. 2003)   Cited 12 times

   At the outset, we note our agreement with Smith and conclude that section 836.10 is not vague. We also disagree with Saidi contention that section 836.10 is constitutionally infirm because it is overbroad. Section 836.10 prohibits sending a written communication threatening to kill or injure the recipient, or any member of his/her family. Smith. Threats to kill or do bodily harm are not constitutionally protected and are legislatively proscribable. United States v. Hutson 843 F.2d 1232 (9th Cir. 1988); United States v. Quinn 514 F.2d 1250, 1268 (5th Cir. 1975).

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3. Reilly v. State, Dept. of Corrections

   847 F. Supp. 951 (M.D. Fla. 1994)   Cited 6 times

   3 more...

   Petitioner asserts that § 836.10 is unconstitutionally vague without argument or citation to case law. In Smith v. State, the Florida Second District Court of Appeal specifically upheld § 836.10 in the face of a vagueness challenge. 532 So.2d 50 (Fla. 2d DCA 1988). Citing State v. Wilson, 464 So.2d 667, 668 (Fla. 2d DCA 1985), the District Court held that as long as the language of the statute conveys sufficiently definite warnings of the proscribed conduct when measured by common understanding and practice, it is not unconstitutionally vague. Smith v. State, 532 So.2d 50 (Fla. 2d DCA 1988). The statute in question is definite enough to apprise persons of common intelligence of the proscribed activities. Therefore, § 836.10 is not unconstitutional due to vagueness.

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4. T.R.W. v. State

   No. 4D21-2396 (Fla. Dist. Ct. App. Feb. 15, 2023)

   • Motion to dismiss

   The trial court failed to consider the mens rea element of section 836.10, specifically determining that T.R.W.'s intent was irrelevant. Based upon Romero and Elonis, section 836.10 must be construed to have an element of intent. We thus reverse the court's order finding T.R.W. guilty on the main charge of violating section 836.10 and revoking his probation on that basis in the two other cases. We remand for the court to reconsider its rulings consistent with this opinion.

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5. Macchione v. State

   123 So. 3d 114 (Fla. Dist. Ct. App. 2013)   Cited 13 times

   Patrick Macchione is a deeply disturbed individual who suffers from “severe” mental illness. This may explain, but does not excuse (mental competence is not an issue), his obsession with the victim and his threats to take the victim's life. Macchione comes to this court with an array of convictions that include sixteen violations of repeat violence injunction and one conviction each for aggravated stalking after an injunction, aggravated stalking with a credible threat, and violation of section 836.10, Florida Statutes (2009), which makes it a crime if a person “writes or composes and also sends or procures the sending of any letter or inscribed communication ... to any person, containing a threat to kill or do bodily injury to the person to whom such letter or communication is sent....” § 836.10, Fla. Stat. (2009). Of these convictions, Macchione challenges only the latter, contending that the trial court committed reversible error in denying his motion to dismiss that charge. The question presented is whether, as Macchione contended in his motion and contends in this appeal, the threatening electronic communications in the form of Twitter postings and YouTube…

   PAGE 115
6. Puy v. State

   294 So. 3d 930 (Fla. Dist. Ct. App. 2020)   Cited 3 times

   • Motion to dismiss

   In J.A.W. , a juvenile posted several statements on Twitter, a social media platform, such as "can't wait to shoot up my school" and "school getting shot up on a Tuesday." 210 So. 3d at 143. The court reversed the conviction because all the threats "were not sent directly to the alleged victims or their families as prohibited under the plain language of section 836.10." Id. After J.A.W. , section 836.10 was amended. Now the plain language of section 836.10 does not require that the individual send the threat "directly" to any particular person, as was required in the prior iteration of this statute. Unlike the prior statute, the present statute is invoked by the mere act of posting the threat on social media, regardless of whether it is directed to an individual.

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7. State v. Cowart

   301 So. 3d 332 (Fla. Dist. Ct. App. 2020)   Cited 1 times

   • Motion to dismiss

   Cowart was subsequently arrested and charged by amended information with sending written threats to kill or do bodily injury to a child pursuant to section 836.10, Florida Statutes (2018). At the time Cowart sent the Snap, section 836.10 provided:
8. J.A.W. v. State

   210 So. 3d 142 (Fla. Dist. Ct. App. 2016)   Cited 3 times

   The plain language of section 836.10 makes clear that it only applies where a threat is sent directly to a specific victim or a member of that person's family. The statute specifies that it covers communications "to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent. " § 836.10 (emphasis added). The only intermediary third parties encompassed in the language of the statute are family members of the potential victim because the statute specifically includes threats "to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent. " § 836.10 (emphasis added); cf. Calamia v. State, 125 So.3d 1007, 1012 (Fla. 5th DCA 2013) (interpreting Florida's extortion statute, section 836.05, Fla. Stat. (2009), "to mean that the intent to compel is coupled with the intent that the communication, either directly or indirectly, reaches the coerced person" because the plain language of the statute requires "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." (emphasis…

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9. Doyle v. State

   240 So. 3d 95 (Fla. Dist. Ct. App. 2018)

   The State's contention that the elements are different because the written threat under section 836.10 may be directed toward a family member is unpersuasive. Under the second element of extortion (as listed above), extortion may be committed by threatening to injure another person. See § 836.05, Fla. Stat. This is broad enough to encompass the third element required for written threats to kill or do bodily injury that the threat of injury is to the person receiving the threat or a member of his or her family. See id. § 836.10. A conviction for written threats under section 836.10 does not have any additional elements not contained in section 836.05. Therefore, dual convictions on both charges, arising out of the same criminal transaction, violate double jeopardy.

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10. N.D. v. State

    315 So. 3d 102 (Fla. Dist. Ct. App. 2020)

    The statute has been held not to be overbroad. Saidi v. State, 845 So. 2d 1022, 1026 (Fla. 5th DCA 2003) (holding section 836.10 is not constitutionally infirm for overbreadth); Reilly v. State, Dep't of Corrections, 847 F. Supp. 951 (M.D. Fla. 1994) (applying Florida law, and holding that because of the limited objectives of section 836.10 and because threats to injure persons are not constitutionally protected, the statute cannot be considered overbroad). As threats to injure or kill are not constitutionally protected, a defendant's First Amendment rights are not violated by laws prohibiting such threats. See Smith v. State, 532 So. 2d 50 (Fla. 2d DCA 1988). Further, "courts must exercise caution in distinguishing true threats from crude hyperbole—a judgment derived from examining the totality of the circumstances." Id. at 53 ; see also 16A Fla. Jur 2d Criminal Law—Substantive Principles/Offenses § 1053.

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