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Written Threat to Kill or Do Bodily Injury

In many stalking or cyber stalking cases, the charges become more serious when it is alleged that a threat to kill or do bodily injury was communicated to the alleged victim in writing. Similar to extortion cases, it is not necessary for the State to prove the defendant had the actual intent to do harm or the ability to carry out the threat. Saidi v. State, 845 So.2d 1022 (Fla. 5th DCA 2003).

Florida Statute Section 826.10 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).

If you were charged with making a threat in writing or online then contact a criminal defense attorney at the Sammis Law Firm. Our offices are located in Tampa, Hillsborough County, FL. We represent clients through the Tampa Bay area and all surrounding counties. We are experienced in fighting these cases aggressively. In our cases, we fight for the best possible result to protect our client from the consequences of this serious charge.


Jury Instructions for Written Threat to Kill

On December 5, 2013, the Florida Supreme Court approved the new standard jury instruction for crimes charged under Florida Statute Section 836.10. One of the best ways to understand the statute is to read the standard jury instructions.

The new standard jury instructions state that in order to prove the crime of Written Threat to Kill or Do Bodily Injury, the prosecutor with the State Attorney's Office must prove the following three elements beyond a reasonable doubt:

  1. The Defendant wrote or composed a letter, electronic communication, or inscribed communication;
  2. The communication contained a threat to do bodily injury or kill the victim or any member of the victim's family; and
  3. The Defendant sent the communication or procured the sending of the communication to the same victim.

The first element lists three alternative prohibitions, “letter, inscribed communication, or electronic communication” that may form the basis of a criminal prosecution. See Macchione v. State, 123 So. 3d 114, 118 (Fla. Dist. Ct. App. 2013).

The standard jury instructions also provide that "it is not necessary for the State to prove that the letter, electronic communication, or inscribed communication had been signed.


Defenses to Threatening to Kill or Harm Another in Writing

Important defenses to these serious charges exist. Defenses often center around the Defendant's denial that the communications were sent by him or her. These cases often involves electronic communications which are often hard to trace back. For this reason, anyone accused of this offense should never make a statement to any law enforcement officer. Instead, call an attorney who can present your side of the story to law enforcement, if appropriate under the circumstances.

Another type of defense might involve a showing that the communications were a hoax or joke with no actual intent to threaten anyone. A threat often involves the actual ability to carry out the action immediately. Many of these statements are not threats because the statement that the act will be carried out is contingent on some future event and not intended to be an immediate action.


Making Written Threats Electronically or In Cyberspace

Traditionally, written threats were made in a letter. Today, written threats are often made via e-mail or on social media sites such as Facebook, Twitter, MySpace, YouTue or LinkedIn. The courts in Florida have interpreted the statute broadly to include even written threats made on the Defendant's Facebook page that were subsequently viewed by the alleged victim. See O'Leary v. State, 109 So. 3d 874, 877 (1st DCA 2013).

In the O'Leary case, the court reasoned that "when a person composes a statement of thought, and then displays the composition in such a way that someone else can see it, that person has completed the first step in ...[the] definition of “sending.” When the threatened individual, or a family member of the threatened individual, views and receives the thoughts made available by the composer, the second step in the ...definition is completed. At that point, the statement is “sent” for purposes of Section 836.10, Florida Statutes.

The O'Leary court also cited a law review article by Jacqueline D. Lipton, Combating Cyber–Victimization, 26 Berkeley Tech. L.J. 1103, 1127–28 (2011), that explained that Internet technologies “generally do not involve communications sent directly to another. Rather, communications are posted for the whole world to see, or, in a closed network for a particular community to see, such as a community of ‘Facebook friends.’ ” Id at 877.


Penalties and Punishments for Threatening a Person in Writing

The penalties and punishments for threatening a person in writing or in an electronic communication can be serious. Any violation of Section 836.10 is a second degree felony, punishable by up to fifteen (15) years in prison.


Definitions in Cases for Making Written Threats

Florida law provides for certain definitions related to sending written threats. The term “inscribed communication” is defined as any communication that is written or printed. The definition for inscribed communication comes from the dictionary definition of the word inscribed.

The term to “procure” means to induce, prevail upon, persuade, or otherwise cause a person to do something. This definition for procure is the same definition used in the jury instructions for manslaughter.

The act of “sending” under the statute involves not only depositing of communication in mail or some other form of delivery, but also encompasses receipt of communication by person being threatened. State v. Wise, 664 So.2d 1028 (2nd DCA 1995), rehearing denied.


History of the Making Threats Statute

The history of Florida's statute for making threats to do bodily injury or kill include four amendments since its original enactment. The fourth amendment to the statute took effect on October 1, 2010. That amendment significantly expended the crime to include electronic communications. 

On December 5, 2013, the Florida Supreme Court noted that there is no statutory definition for the term “electronic communication.”


Where Can Written Threat Cases Be Prosecuted?

The term venue refers to the place where the criminal charges can be prosecuted. The venue in written threats cases may be proper in more than one place. Venue may be proper in either the county where the communications were sent or in the county where the communications were received.

Therefore, if the defendant lives out of the State of Florida but directs the communication at a victim living in Florida, the crime might be prosecuted in Florida. The reason for allowing the prosecution in either place is because an act constituting part of the offense occurred in both places.


First Amendment Protections for Making Threats

Threats to injure or kill are not constitutionally protected. Therefore, the defendant's First Amendment rights are not generally compromised by laws prohibiting making written threats to do bodily injury or kill.


Related Offenses

Related offenses to making written threats can include:

  • stalking;
  • cyberstalking;
  • aggravated stalking after an injunction; or
  • aggravated stalking with a credible threat.

Lesser included offenses can include assault. For cases involving a threat to a public servant, related offenses might include threatening harm to public servant or person with whose welfare public servant is entrusted.


Finding an Attorney for Felony Written Threats Cases

If you were charged with the serious felony offense of making threats in writing or through electronic communications or e-mail, then contact an experienced criminal defense attorney at the Sammis Law Firm. We are experienced in representing clients on a variety of stalking and cyber-stalking cases, especially in cases involving allegations of domestic violence.

Call us today at 813-250-0500 to discuss your case if you were arrested in Florida, including Hillsborough County, Pinellas County, Pasco County, and Hernando County, FL.

This article was last updated by on Wednesday, April 1, 2015.

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