ARCHIE NELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Archie Nelson was convicted of resisting an officer without violence after running from police who stopped him based solely on his flight. The Florida appellate court reversed the conviction, holding that Nelson's conduct did not constitute the crime of resisting an officer because he complied with all police commands once apprehended and there was no lawful basis for the initial stop.
The conviction for resisting an officer without violence must be reversed because Nelson's conduct did not constitute that crime. Flight standing alone does not justify a stop by a police officer, nor does it support a charge of obstructing a police officer in the lawful execution of a legal duty. Once the officer found Nelson, Nelson complied with all requests, so there was nothing for him to resist.
[1] Flight, standing alone, does not constitute obstruction or opposition to a police officer engaged in the lawful execution of a legal duty.
[2] A conviction for resisting an officer without violence requires proof that the defendant obstructed or opposed an officer engaged in the lawful execution of a legal duty.
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Join FLexlaw to unlock all legal intelligence“The offense of resisting an officer requires proof that the defendant obstructed or opposed an officer who was engaged in the lawful execution of a legal duty.”
Establishes the statutory standard for the crime of resisting an officer
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Join FLexlaw to unlock all legal intelligenceOfficers Reece and Swank observed Nelson standing near a building and saw him run at the sight of their marked police cruiser. Officer Reece pursued N…
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PARKER, Judge.
Archie Nelson appeals his conviction for resisting an officer without violence. We reverse.
Nelson was convicted of felony petit theft and resisting an officer without violence. The only evidence presented at trial relating to the resisting charge is set forth below. Officers Reece and Swank of the Lakeland Police Department, while on routine patrol, saw Nelson standing near a building with something in his arms. Nelson ran at the sight of the marked police cruiser. Officer Reece testified that he thought it was suspicious for a person to run when observing a police vehicle. For this sole reason, Reece pursued Nelson and found him nearby lying on his stomach inside a fenced area. Nelson furnished his name and address to the officers, when requested, and climbed back over the fence when the officers asked him to do so. The officers handcuffed Nelson and secured him in the back of the squad car. Then the officers found packages of lunch meat on the ground where Reece had first observed Nelson. Later the officers learned that this lunch meat had been stolen from a convenience store.
Defense counsel moved for a judgment of acquittal, both at the end of the state’s case and at the conclusion of the evidence, arguing that there was insufficient identification of Nelson as the person committing the theft. The trial judge denied the motions. On appeal, Nelson argues that his conviction for resisting an officer should be reversed because the undisputed evidence fails to establish a prima facie case of that crime.*
The offense of resisting an officer requires proof that the defendant obstructed or opposed an officer who was engaged in the lawful execution of a legal duty. § 843.02, Fla.Stat. (1985). When Nelson ran, there was nothing for him to resist. Flight, standing alone, will not justify a stop of an individual by a police officer, Wilson v. State, 433 So. 2d 1301 (Fla. 2d DCA 1983), nor will it support a charge of obstructing a police officer in the lawful execution of a legal duty. C.K. v. State, 487 So. 2d 93 (Fla. 3d DCA 1986). Reece pursued Nelson on a mere hunch that Nelson’s flight was suspicious. Once Reece found Nelson, Nelson complied with the officers’ requests.
Accordingly, Nelson’s conduct did not constitute the crime of resisting an officer.
The state argues that this issue was not preserved for appeal because Nelson failed to raise this ground in his motions for judgment of acquittal. Generally, a defendant must articulate the correct grounds in a motion for judgment of acquittal in order for an appellate court to review the issue. Johnson v. State, 478 So. 2d 885 (Fla. 3d DCA 1985), cause dismissed, 488 So. 2d 830 (Fla.1986).
This case, however, is not the usual failure of proof case. Instead, this is a situation where Nelson’s conduct did not constitute the crime of resisting an officer. Even though this issue was not raised in the trial court, it would be fundamental error not to correct on appeal a situation where Nelson stands convicted of a crime that never occurred. See Dydek v. State, 400 So. 2d 1255 (Fla. 2d DCA 1981); Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987) (en banc), review denied, 525 So. 2d 881 (Fla.1988).
Accordingly, we reverse Nelson’s judgment and sentence for resisting an officer without force.
RYDER, A.C.J., and FRANK, J., concur. *
The state did not contest this argument on appeal.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By (28 total)
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F.B. v. State, 852 So. 2d 226 (Fla. 2003)…1994) (reversing conviction and stating that “[c]onviction of a crime which did not take place is a fundamental error, which the appellate court should correct even when no timely objection or motion for acquittal was made below”); Nelson v. State, 543 So. 2d 1308, 1309 (Fla. 2d DCA 1989) (reversing conviction as fundamental error because defendant’s conduct did not constitute the crime of which he was convicted). Y. Conclusion In conclusion, we reaffirm, with the two discrete exceptions explicated above, t…
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J.B. v. State, 705 So. 2d 1376 (Fla. 1998)…ttal at the close of the state’s ease preserved the issue, we find no trial court error.” (Emphasis added.) In finding this issue to constitute fundamental error in Johnson, the Second District relied by analogy on its decisions in Nelson v. State, 543 So. 2d 1308 (Fla. 2d DCA 1989), and Dydek v. State, 400 So. 2d 1255 (Fla. 2d DCA 1981), for the proposition that the error [*1379] in admitting the defendant’s confession without independent proof of the corpus delicti was fundamental. In Nelson, the court held…
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Slydell v. State, 792 So. 2d 667 (Fla. 4th DCA 2001)…not specifically set forth the grounds he later argued on appeal, we held that his kidnaping conviction constituted fundamental error, because no kidnaping occurred, as the child was not tied up or confined. In so ruling, we cited Nelson v. State, 543 So. 2d 1308 (Fla. 2d DCA 1989). There, the Second District Court of Appeal found fundamental error in a conviction for resisting an officer without violence. The state’s proof at trial established that the defendant ran at the sight of a marked police cruiser.…1 / 2
Previewing 3 of 28 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Darrel Michael Abbott v. State, 478 So. 2d 885 (Fla. 2d DCA 1985)
- Dydek v. State, 400 So. 2d 1255 (Fla. 2d DCA 1981)
- Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987)
- Wilson v. State, 433 So. 2d 1301 (Fla. 2d DCA 1983)
- C.K. v. State, 487 So. 2d 93 (Fla. 3d DCA 1986)