Posted by Nydia Streets of Streets Law in Florida Domestic Violence
When a domestic violence injunction is entered against a person in Florida, that person is required to surrender his or her firearms. This can happen when a temporary injunction is entered pending the outcome of a final hearing. If the injunction is ultimately denied, the person whose firearms were surrendered is typically entitled to have his or her property returned immediately since the temporary injunction expires by the time the permanent injunction is denied. This was an issue in the case Wolfe v. Newton, 2D20-1994 (Fla. 2d DCA December 11, 2020).
The underlying action concerned a stalking injunction sought by a party against her neighbor. The neighbor became concerned about the way the petitioning party was keeping her dog and using an adjoining lot, and he began monitoring her and her property. The petitioning party in turn became concerned about the way the neighbor was monitoring her and she sought an injunction against him for stalking. A temporary injunction was entered which required the neighbor to surrender his firearms to the sheriff’s office, which he did.
After an evidentiary hearing, the trial court denied the petition and dismissed it, holding there was no evidence of stalking. After this, the neighbor sought to have his firearms returned by filing a verified motion to that effect. A hearing on this motion was eventually set, and since both parties appeared at the hearing via audio on Zoom and not by video, the court entered an order resetting the hearing to a later date at which time the parties were required to appear in person. The neighbor appealed by filing petitions for writs with the appellate court, arguing it was not necessary for a hearing to occur and that his property should be returned to him immediately since the temporary injunction on which it was based was dismissed.
The appellate court agreed with the neighbor. The court held “[. . .] All of which leads us to the inescapable deduction that the court was ordering this evidentiary hearing not to facilitate the return of Mr. Wolfe's seized firearms, but to decide whether there was some independent reason Mr. Wolfe's firearms ought not to be returned to him. That was not a decision the circuit court could make. The case between Ms. Newton and Mr. Wolfe was over and the court's order was final. The court had no lawful authority to compel Mr. Wolfe to testify as a prerequisite to what should have been the purely ministerial act of returning his property to him. Therefore, we must grant his petition for prohibition.”
If you need help with a domestic violence injunction in Florida, schedule a consultation with a Miami family law attorney to go over the specifics of your case.