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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO
RONALD GASPARD,
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
v.
CASE NO. 1D01-2931
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed April 3, 2003.
An appeal from Circuit Court of Leon County.
Royce Agner, Judge.
Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public
Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General, and Phillip W. Edwards, Assistant Attorney General,
Tallahassee, for Appellee.
ALLEN, C.J.
The appellant in this direct criminal appeal challenges his conviction of
aggravated stalking after entry of a domestic violence injunction. He presented

evidence at trial that he did not know that the injunction was in effect at the time of the
alleged offense, and he argues on appeal that the trial court fundamentally erred by
failing to instruct the jury that an element of the offense is knowledge by the accused
that an injunction or other specified court order is in effect. Concluding that such
knowledge is an element of the offense and that the trial court fundamentally erred in
failing to so instruct the jury, we reverse the appellant's conviction.
Section 784.048(4), Florida Statutes, provides in pertinent part that it is unlawful
for any person under injunction for protection of another person against domestic
violence to willfully, maliciously, and repeatedly follow or harass such other person.
Violation of the statute constitutes a felony of the third degree. The mens rea
requirement specified in the statute relates only to the following or harassing element
of the offense, and thus the statute is silent as to whether knowledge of the injunction
is also an essential element. But the supreme court, in applying a double jeopardy
analysis pursuant to Blockburger v. United States, 284 U.S. 299 (1932), has concluded
that "[t]he statutory elements of aggravated stalking under section 784.048(4) are
knowledge of an injunction, and knowingly, willfully, maliciously, and repeatedly
following or harassing the beneficiary of the injunction." State v. Johnson, 676 So. 2d
408 (Fla. 1996) (Emphasis supplied). We note that this recitation of the statutory
elements is consistent with the principles expressed by the supreme court in Chicone
2

v. State, 684 So. 2d 736 (Fla. 1996). See also Staples v. United States, 511 U.S. 600
(1994).
Because knowledge by an accused that an injunction is in effect is an essential
element of the offense, the trial court failed to properly instruct the jury. Although a
proper instruction was not requested, the trial court's failure to instruct the jury as to
this essential element of the offense constituted fundamental error in this case. See
State v. Delva, 575 So. 2d 643 (Fla. 1991). The appellant's conviction is accordingly
reversed, and this case is remanded.
BENTON and HAWKES, JJ., CONCUR.
3

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