STATE OF FLORIDA, APPELLANT,
v.
LARRY GILCHRIST, APPELLEE
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The State appeals a trial court's dismissal of charges against Gilchrist for resisting an officer with violence and battery on a law enforcement officer. The appellate court reverses, holding that factual disputes about whether the officer was lawfully performing his duties should not be resolved on a motion to dismiss, and that use of force against a law enforcement officer is unlawful regardless of any technical illegality of the arrest.
The trial court erred in granting the motion to dismiss because the state's version of the facts established a prima facie case and factual disputes should not be resolved on a (c)(4) motion. Additionally, there is no privilege to use force in resisting arrest by a person reasonably known to be a law enforcement officer, notwithstanding any technical illegality of the arrest.
[1] A person may not use force to commit a battery against a law enforcement officer, even if the arrest is technically unlawful.
[2] 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.
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Join FLexlaw to unlock all legal intelligence“as this court has repeatedly held in the context of a (c)(4) motion, this procedure is no substitute for a trial, and if any fact or inferences therefrom establish a prima facie case against the defendant, it should not be granted.”
Establishes the standard that factual disputes cannot be resolved on a motion to dismiss when a prima facie case exists
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Join FLexlaw to unlock all legal intelligenceGilchrist was charged with resisting an officer with violence to his person and battery on a law enforcement officer. Gilchrist argued that the office…
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SHARP, Judge.
The state appeals a trial court’s dismissal of a two count information which it filed against appellant.1 Appellant was charged with resisting an officer with violence to his person,2 and battery on a law enforcement officer in the lawful performance of his duties.3 We find that the trial court erred in granting Gilchrist’s motion to dismiss made pursuant to Rule 3.190(c)(4) of the Florida Rules of Criminal Procedure, and we reverse.
Gilchrist argues that the officer was not in the “lawful performance” of his duties when the battery occurred. But the facts and inferences were in dispute and the state’s version established a prima facie case. The question of lawful performance is one of fact which should not be resolved by a (c)4 motion. Smith v. State, 399 So. 2d 70 (Fla. 5th DCA 1981).
[A]s this court has repeatedly held in the context of a (c)(4) motion, this procedure is no substitute for a trial, and if any fact or inferences therefrom establish a prima facie case against the defendant, it should not be granted.
State v. Stewart, 404 So. 2d 185, 186 (Fla. 5th DCA 1981).
With regard to the second count, this court has held that there is no privilege to use force against an officer attempting to effect an illegal arrest. In State v. Barnard, 405 So. 2d 210 (Fla. 5th DCA 1981), we said 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.” Id. (quoting Lowery v. State, 356 So. 2d 1325, 1326 (Fla. 4th DCA 1978)). See also § 776.050, Fla.Stat. (1983). The record clearly establishes that Gilchrist, when contacted by the officers, unquestionably resorted to violence. Therefore, dismissal of this count was clearly erroneous.
REVERSED.
FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur. . Fla.R.Crim.P. 3.190(c)(4).
. § 843.01, Fla.Stat. (1983).
. § 784.07, Fla.Stat. (1983).
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Citator
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Jones v. State, 570 So. 2d 433 (Fla. 5th DCA 1990)…provided independent grounds for his arrest before officer indicated any intention to arrest appellant). The issue of whether the law enforcement officer was acting in the lawful performance of his duties is a question of fact. State v. Gilchrist, 458 So. 2d 1200 (Fla. 5th DCA 1984). Because appellant’s battery upon Officer Ellison was illegal, it necessarily follows that the evidence seized was seized incident to a lawful arrest. Evidence seized incident to a lawful arrest is admissible, Curry v. State, 53…
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Tillman v. State, 807 So. 2d 106 (Fla. 5th DCA 2002)…1978). We have extended the above rule to cover the crime of battery on a law enforcement officer, and to apply to illegal stops, detentions and even illegal contacts. See State v. Giddens, 633 So. 2d 503 (Fla. 5th DCA 1994) and State v. Gilchrist, 458 So. 2d 1200 (Fla. 5th DCA 1984). See also, State v. Roux, 702 So. 2d 240 (Fla. 5th DCA 1997), and Jones v. State, 570 So. 2d 433 (Fla. 5th DCA 1990) (no technically illegal arrest in Roux — agent simply walked toward Roux). Despite these cases, Tillman argues…
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Dominique v. State, 590 So. 2d 1059 (Fla. 4th DCA 1991)…ry v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978); Rosenberg v. State, 264 So. 2d 68 (Fla. 4th DCA 1972) (proper forum to contest the legality of an arrest is a court of law rather than resisting arrest with violence at the scene; State v. Gilchrist, 458 So. 2d 1200 (Fla. 5th DCA 1984) (there is no privilege to use force against an officer attempting to effect an illegal arrest); State v. Barnard, 405 So. 2d 210 (Fla. 5th DCA 1981) (use of force in resisting arrest by a person reasonably known to be a law enfor…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978)
- Smith v. State, 399 So. 2d 70 (Fla. 5th DCA 1981)
- State v. Barnard, 405 So. 2d 210 (Fla. 5th DCA 1981)
- State v. Stewart, 404 So. 2d 185 (Fla. 5th DCA 1981)