ALFRED LIVINGSTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1992-12-22
No. 92-838
Before SCHWARTZ, C.J., and BARKDULL and LEVY, JJ.
610 So. 2d 696 Florida District Court of Appeal, Third District (1992) Negative Treatment
Cited by 5 cases
Topics
Right To Resist Unlawful Arrest Disorderly Conduct Resisting Arrest With Violence Resisting Arrest Without Violence

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Opinion of the Court
SCHWARTZ, Chief Judge.

SCHWARTZ, Chief Judge.

Livingston was charged with resisting arrest with violence, but convicted by the jury of resisting without violence. We conclude that he must be discharged because the underlying arrest for disorderly conduct was illegally based solely upon the defendant’s use of uncivil language which was protected by the first amendment. State v. Saunders, 339 So. 2d 641, 644 (Fla.1976); K.Y.E. v. State, 557 So. 2d 956, 957 (Fla. 1st DCA1990); Blake v. State, 433 So. 2d 611, 612 (Fla. 1st DCA1983); Phillips v. State, 314 So. 2d 619, 620 (Fla. 4th DCA1975). Since that is the case, the defendant was entitled to resist the arrest without violence as a matter of law. Licata v. State, 156 Fla. 692, 24 So. 2d 98 (1945); Lee v. State, 368 So. 2d 395, 396 (Fla. 3d DCA1979), cert. denied, 378 So. 2d 349 (Fla.1979). Accordingly, the judgment is reversed with directions to enter a judgment of acquittal.

Reversed.

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Cited By

  • K.A.C. v. State, 707 So. 2d 1175 (Fla. 3d DCA 1998)
    …questions, the trial court properly found that K.A.C. committed the offense of resisting an officer without violence. We reject the State’s confession of error, relying on L.A.T. v. State, 650 So. 2d 214 (Fla. 3d DCA 1995), and Livingston v. State, 610 So. 2d 696 (Fla. 3d DCA 1992). Those cases are not controlling here. In count 1, K.A.C. was charged with disorderly conduct on the basis of his loud profanity directed toward the police. The L.A.T. decision holds, on First Amendment grounds, that loud profani…
  • Avery Jones v. State, 613 So. 2d 127 (Fla. 3d DCA 1993)
    …o. 2d 181 (Fla.1991). For that reason the search which followed was illegal. We agree with the defendant that his conviction for resisting an officer without violence was also flawed because it was based on an unlawful arrest. Livingston v. State, 610 So. 2d 696 (Fla. 3d DCA 1992). Reversed and remanded for further proceedings.…
  • El Maayergy v. State (15th Cir. Ct. App. Div. 2008)
    …e or withhold a proposed jury instruction is reviewed under an abuse of discretion standard." Campbell v. State, 812 So. 2d 540, 543 (Fla. 4th DCA 2002). A defendant is entitled to resist an unlawfbl arrest as a matter of law. Livinnston v. State, 610 So. 2d 696,697 (Fla. 3d DCA 1992). A defendant is entitled to have the jury instructed on the theory of his or her defense if there is any evidence supporting the theory. Lanaston v. State, 789 So. 2d 1024, 1026 (Fla. 1st DCA 2001). The Florida Standard Ju…

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