STATE OF FLORIDA, APPELLANT,
v.
BENNY LEE GREEN, APPELLEE
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The State appeals the trial court's dismissal of charges against Benny Lee Green for resisting arrest with violence. The appellate court holds that the ambiguous facts regarding Green's 'wiggling and struggling' during handcuffing present a jury question about whether the resistance involved violence, making summary dismissal improper.
The trial court erred in granting the motion to dismiss because the ambiguous facts regarding Green's resistance create a jury question about whether the resistance constituted 'violence' as an element of the crime. The facts, construed most favorably to the state, establish a prima facie case of resisting arrest with violence.
[1] A motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) should not be granted if the facts presented, taken together, establish a prima facie case for th…
[2] When considering a motion to dismiss, the state is entitled to the construction of facts most favorable to it, with all inferences resolved against the defendant.
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Join FLexlaw to unlock all legal intelligence“The facts set out in Green's (c)(4) motion and the state's response to it are susceptible of an interpretation that establishes such a prima facie case.”
Establishes that ambiguous facts must be construed favorably to the state on a motion to dismiss
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Join FLexlaw to unlock all legal intelligenceThree deputies arrived at Green's home to arrest him on probable cause for aggravated battery of his girlfriend. During the arrest, one deputy held Gr…
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COBB, Judge.
The appellee, Benny Lee Green, was charged with resisting arrest with violence. He moved to have the information against him dismissed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The trial court granted the motion, and the state appeals.
The factual background of this issue is as follows: three deputies came to Green’s home to arrest him on probable cause for the aggravated battery of his girlfriend. While it is disputed as to whether or not the deputies entered the home with the consent of Green, that point is not involved on this appeal. One of the deputies, unidentified in Green’s motion, held one of Green’s arms to handcuff him. With his other arm, Green held onto the doorknob of the front door or the door itself. When told to let go, Green began “wiggling and struggling” in an effort to free himself. Deputy Lockwood, who had been guarding the back door of the residence, put a choke hold on Green, causing Green and Deputies Lockwood and Phillips to fall. Green was then handcuffed.
Subsequently, Green was charged with resisting arrest with violence, in violation of section 843.01, Florida Statutes (1979). Specifically, the information charged that Green did
unlawfully, wilfully, and knowingly resist, obstruct or oppose [Deputy Volker-son] in the lawful execution of his duty, to-wit: the arrest of [Green] for the offense of aggravated battery by offering or doing violence to the person of the said officer. The state basically demurred to Green’s motion, adding only that the victim of the aggravated battery lived with Green, and that based upon what she had told them, the deputies had probable cause to arrest Green for aggravated battery.
Essentially, the issue before this court is whether the facts presented by both sides, taken together, either (1) fail to establish a prima facie case of the charge of resisting arrest with violence, or (2) do establish a valid defense to that charge. Camp v. State, 293 So. 2d 114 (Fla. 4th DCA), cert. denied, 302 So. 2d 413 (Fla.1974); State v. Giesy, 243 So. 2d 635 (Fla. 4th DCA 1971).1 The facts set out in Green’s (c)(4) motion and the state’s response to it are susceptible of an interpretation that establishes such a prima facie case. Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA), cert. denied, 352 So. 2d 175 (Fla.1977); State v. DeJerinett, 283 So. 2d 126 (Fla. 2d DCA), cert. denied, 287 So. 2d 689 (Fla.1973). The trial court therefore erred by granting Green’s motion to dismiss.
Green’s motion states that he “wiggled and struggled” when the deputies attempted to handcuff him. The ambiguity of this description prevents a determination by the trial court that Green’s resistance was or was not, as a matter of law, with violence.2 If, based on the undisputed facts, a jury question exists, a (c)(4) motion to dismiss should not be granted. Ellis v. State; State v. DeJerinett; See also State v. Power, 369 So. 2d 96 (Fla. 2d DCA 1979).
Moreover, where the relevant and undisputed facts are not clear, a (c)(4) mo tion should not be granted. The rule is that upon a motion to dismiss, the state is entitled to the construction most favorable to it, and all inferences are resolved against the defendant. State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981); State v. Fetherolf, 388 So. 2d 38 (Fla. 5th DCA 1980); State v. DeJerinett. Construed in the light most favorable to the state, the facts establish a prima facie case of resisting arrest with violence, which was not negated by the movant.
Since this case must be reversed and remanded because the facts do not establish, as a matter of law, that Green’s actions did not constitute “violence,” it is unnecessary for this court to determine whether or not the arrest was legal. The order of the trial court is reversed, and this cause is remanded for further proceedings below.
REVERSED and REMANDED.
ORFINGER and. COWART, JJ., concur. . A valid defense can either establish an affirmative defense or negate a prima facie element.
. One cannot use violence to resist even an unlawful arrest. Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978).
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Citator
Cited By (18 total)
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State v. Hunwick, 446 So. 2d 214 (Fla. 4th DCA 1984)…v. State, 392 So. 2d 18 (Fla. 1st DCA 1980); State v. West, 262 So. 2d 457 (Fla. 4th DCA 1972). On a motion to dismiss, the state is entitled to a construction most favorable to it; all inferences are resolved against the defendant. State v. Green, 400 So. 2d 1322 (Fla. 5th DCA 1981); State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981); State v. Fetherolf, 388 So. 2d 38 (Fla. 5th DCA 1980). So long as the state shows the barest prima facie case, it should not be prevented from prosecuting. State v. Pentecost,…
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State v. Zeb Adderly, 411 So. 2d 981 (Fla. 3d DCA 1982)…ces and all inferences on a motion to dismiss are to be resolved against the defendant. As a matter of law Adderly would not, on this record, have been entitled to a discharge even had the motion been procedurally correct. See, e.g., State v. Green, 400 So. 2d 1322 (Fla. 5th DCA 1981); McClain v. State, 383 So. 2d 1146 (Fla.4th DCA 1980), pet. for rev. denied, 392 So. 2d 1376 (Fla.1980); Gilbert v. State, 347 So. 2d 1087 (Fla.3d DCA 1977).…
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State v. Fordham, 465 So. 2d 580 (Fla. 5th DCA 1985)…facts are resolved in favor of the state, like the non-moving party in a civil summary judgment proceeding. State v. Fuller; State v. Patel, 453 So. 2d 218 (Fla. 5th DCA 1984); State v. Raulerson, 403 So. 2d 1102 (Fla. 5th DCA 1981); State v. Green, 400 So. 2d 1322 (Fla. 5th DCA 1981). Here the motion was not sworn to and the affidavit which appellee signed saying “To the best of my knowledge, based upon my reading of the above depositions, the facts and matters alleged in said motion are true and correct sin…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977)
- State v. Upton, 392 So. 2d 1013 (Fla. 5th DCA 1981)
- Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978)
- State v. Giesy, 243 So. 2d 635 (Fla. 4th DCA 1971)
- State v. Fetherolf, 388 So. 2d 38 (Fla. 5th DCA 1980)
- Camp v. State, 293 So. 2d 114 (Fla. 4th DCA 1974)
- State v. de Jerinett, 283 So. 2d 126 (Fla. 2d DCA 1973)
- DeJERINETT v. State, 287 So. 2d 689 (Fla. 1973)
- State v. Power, 369 So. 2d 96 (Fla. 2d DCA 1979)
- Adkins v. State, 302 So. 2d 413 (Fla. 1974)