ALFONZO DAVIS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alfonzo Davis appeals his conviction for resisting arrest without violence, arguing the trial court erred in failing to instruct the jury that the legality of the arrest is an essential element of the crime. The court agrees and reverses, holding that under common law, a person may lawfully resist an unlawful arrest without violence, and the jury must be instructed to determine whether the arrest was lawful.
The trial court erred by failing to instruct the jury that the legality of the arrest is an essential element of resisting arrest without violence. Under common law, one may lawfully resist an unlawful arrest without violence, and therefore the jury must be instructed that they cannot find the defendant guilty unless they first determine the arrest was lawful.
[1] Proof of the legality of an arrest is an essential element of the crime of resisting arrest without violence.
[2] A jury must be instructed that the legality of an arrest is a factor to be proved when a defendant is charged with resisting arrest without violence.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The common law rule remains that one can resist without violence an unlawful arrest.”
Establishes the foundational legal principle that provides Davis with a potential defense to the resisting arrest charge.
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Join FLexlaw to unlock all legal intelligenceDavis was arrested for open profanity, a charge later determined to be unlawful under prior Florida precedent. During the arrest, Davis attempted to p…
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SHIVERS, Judge.
Appellant appeals the judgment sentence rendered April 11, 1979, which placed him on one year’s probation for resisting arrest without violence. Appellant contends that the trial judge erred in declining to give the jury a requested instruction that they had to find the element of a lawful arrest before they could find appellant guilty of resisting arrest without violence (a misdemeanor). We agree and reverse.
Although appellant was eventually charged with burglary and resisting arrest with violence, he was initially arrested for open profanity. At the time of his arrest, appellant tried to pull away or jerk loose from the arresting officers. The arresting officers forcibly removed appellant to the police car. The evidence is clear, however, that appellant did not hit either police officer. At the close of the State’s case, the trial court, upon appropriate motion, reduced the charge of resisting arrest with violence to resisting arrest without violence. The jury found appellant not guilty of burglary but guilty of resisting arrest without violence.
Appellant’s arrest for open profanity was clearly unlawful. See Brown v. State, 358 So. 2d 16 (Fla.1978), whose holding was reiterated in Brown v. State, 367 So. 2d 1008 (Fla.1979).
The common law rule remains that one can resist without violence an unlawful arrest. Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978); Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978). Thus, the legality of an arrest remains a factor to be proved in a situation where a defendant has resisted arrest without violence. Morley v. State, 362 So. 2d 1013 (Fla. 1st DCA 1978). In the instant case, the jury retired on the question of whether the defendant was guilty of-resisting arrest without violence. Accordingly, the trial judge should have instructed them that proof of the legality of an arrest is an essential element of resisting arrest without violence. Therefore, we must reverse, fully cognizant that on remand the circumstances of this case may require dismissal.
Appellant’s contention that the speedy trial period has run is without merit under the facts of this case. Leeman v. State, 357 So. 2d 703 (Fla.1978); Cantanese v. State, 251 So. 2d 572 (Fla. 4th DCA 1971).
Reversed and remanded for proceedings consistent herewith.
ERVIN and SHAW, JJ., concur.
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Benjamin v. State, 462 So. 2d 110 (Fla. 5th DCA 1985)…776.0512; the end result being that the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest. [*112] Id. at 210. See also, Davis v. State, 381 So. 2d 285 (Fla. 1st DCA 1980); Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978). Thus it becomes unnecessary for the State to prove the lawfulness of the arrest where the charge is brought under section 843.01, resisting arrest with violence. Because an…
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Smith v. State, 399 So. 2d 70 (Fla. 5th DCA 1981)…ourt, by reason of its in limine ruling and subsequent jury instructions, deprived the jury of the right to pass on the issue of the legality of the arrest.2 If the arrest were illegal, it could be lawfully resisted without violence. Davis v. State, 381 So. 2d 285 (Fla. 1st DCA 1980); Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978). In effect, the trial court directed a verdict on this issue during the course of trial. This was error. Accordingly, we reverse and remand for a new trial on Count Three of…
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K.Y.E. v. State, 557 So. 2d 956 (Fla. 1st DCA 1990)…a. 1st DCA 1983), section 776.051, Florida Statutes (1989), the common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence. Smith v. State, 399 So. 2d 70 (Fla. 5th DCA 1981); Davis v. State, 381 So. 2d 285 (Fla. 1st DCA 1980); Morley v. State, 362 So. 2d 1013 (Fla. 1st DCA 1978); Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978); Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978). Accordingly, we REVERSE the conviction for breach of the peace an…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Leeman v. State, 357 So. 2d 703 (Fla. 1978)
- Brown v. State, 358 So. 2d 16 (Fla. 1978)
- Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978)
- Catanese v. State, 251 So. 2d 572 (Fla. 4th DCA 1971)
- Brown v. State, 367 So. 2d 1008 (Fla. 1979)
- Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978)
- Morley v. State, 362 So. 2d 1013 (Fla. 1st DCA 1978)