O'Leary v. State
109 So. 3d 874
| Fla. Dist. Ct. App. | 2013Background
- Appellant posted threats to kill or seriously injure on his personal Facebook page targeting a relative and her partner.
- Michael O’Leary, a Facebook friend, viewed the post and showed it to his uncle, who informed the victims.
- Appellant was charged with two counts under 836.10, but the State dropped one count during proceedings.
- Appellant moved to dismiss for failure to establish a prima facie case; the trial court denied the motion, ruling posting constituted a “sending.”
- Appellant pleaded no contest to one count, reserved appeal of the motion-to-dismiss ruling; sentence: 10 years’ imprisonment and five years’ community control (later reduced on a corrected sentence).
- The appellate court reviews de novo and addresses whether electronic communications fall within the statutory definition of sending under 836.10.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether posting threats on Facebook constitutes sending under 836.10. | O’Leary argues posting is publication, not sending. | State contends posting to Facebook friends is sending to the recipient or family. | Yes; posting on Facebook satisfies sending under 836.10. |
Key Cases Cited
- State v. Wise, 664 So.2d 1028 (Fla. 2d DCA 1995) (three-element framework for 836.10 (writing, sending, recipient/family))
- Saidi v. State, 845 So.2d 1022 (Fla. 5th DCA 2003) (adopts Wise framework for sending)
- Suggs v. State, 72 So.3d 145 (Fla. 4th DCA 2011) (adopts Wise framework for sending; includes electronic communications)
- Bonge v. State, 53 So.3d 1231 (Fla. 1st DCA 2011) (context on Rule 3.190(c)(4) and prima facie case)
- Gresham v. State, 908 So.2d 1114 (Fla. 1st DCA 2005) (de novo review standard for motion to dismiss)
- Holcomb v. Commonwealth, 58 Va.App. 339 (Va. Ct. App. 2011) (electronic threats via social media analogous to sending)