This week, the 1st District Court of Appeal, State of Florida, upheld a trial court ruling that a defendant who posted, on his own personal Facebook page, a tirade of profanity and promises to hurt a relative violated Florida Statute 836.10, Written Treats to Kill or Do Bodily Harm, a second degree felony. O’Leary v. State, Slip Op. No. 1D12-0975 (Fla. 1st DCA, 2013).
Timothy Ryan O’Leary wrote the anti-gay diatribe, aimed at one of his relatives and her same-sex partner, on his Facebook page. Because O’Leary is Facebook friends with his cousin Michael and Michael is also related to the threatened relative, it broke the law, even though the threatened relative was not contacted by O’Leary personally in the incident.
O’Leary sought to have the charges dismissed because he argued that the Facebook comments were not “sent” to the threatened relative, but simply posted on his personal page. O’Leary had pled no contest to one count of the offense (the other count having been dropped by the prosecution) with the stipulation that it could be appealed. He was sentenced to 10 years in prison followed by 10 years of probation.
In denying O’Leary’s motion to dismiss the charges, the 1st DCA used the three element test in State vs. Wise, 664 So. 2d 1028, 1030 (Fla. 2nd DCA 1995). For a violation of Florida Statute 836.10, Wise requires:
1. A person writes or composes a threat to kill or do bodily harm;
2. The person sends or procures the sending of that communication to another person; Continue reading





















