STEVEN BUTLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Steven Butler was convicted of resisting an officer without violence, a lesser included offense of resisting an officer with violence. The court reversed his conviction, holding that the state failed to prove the officer had probable cause for a legal arrest, an essential element of the offense.
The court held that the arrest was unlawful because the conditional threat described in the complaint did not constitute an assault under Florida law. Therefore, Butler's conviction for resisting an officer without violence must be reversed, and the trial court should have granted his motion for judgment of acquittal.
[1] An arrest is unlawful if the officer lacks probable cause to believe the person is committing a crime.
[2] A conditional threat to do injury at some unspecified future time based upon a possible eventuality does not constitute an assault.
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Join FLexlaw to unlock all legal intelligence“the state's evidence at trial failed to show that the officer had probable cause to believe he was effectuating a legal arrest, which is an essential element of the offense”
Establishes the fundamental defect in the conviction: absence of probable cause for lawful arrest
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Join FLexlaw to unlock all legal intelligenceButler was arrested based on a sworn statement from his ex-girlfriend alleging he threatened to physically harm her if she was around any other male. …
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COBB, Judge.
Steven Butler, charged with resisting an officer with violence, was convicted of the permissive lesser included offense of resisting an officer without violence. On appeal he correctly contends that the state’s evidence at trial failed to show that the officer had probable cause to believe he was effectuating a legal arrest, which is an essential element of the offense. Robinson v. State, 550 So. 2d 1186 (Fla. 5th DCA 1989).
The arresting officer’s proffered testimony in regard to the legality of the arrest, which was improperly excluded by the trial judge, clearly revealed that the arrest was based on a sworn statement from the complainant, Butler’s ex-girlfriend, that he had threatened to physically harm her “if she was around any other male.” The statement does not indicate any overt act threatening violence. It sets out a conditional threat to do injury at some unspecified future time based upon a possible eventuality, and this does not constitute an assault. An^ assault is “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla.Stat. (1991); see also, Johnson v. Brooks, 567 So. 2d 34 (Fla. 1st DCA 1990); Bell v. Anderson, 414 So. 2d 550 (Fla. 1st DCA), rev. denied, 424 So. 2d 760 (Fla.1982). Therefore, the attempt to arrest Butler was unlawful, and the trial court should have granted his motion for judgment of acquittal on the charge of resisting without violence at the conclusion of the state’s case.
Accordingly, Butler’s conviction and sentence are reversed.
REVERSED.
DAUKSCH and GRIFFIN, JJ., concur.
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H.W. v. State, 79 So. 3d 143 (Fla. 3d DCA 2012)…lt where Gagnard threatened to kill Sticht and to “ ‘F’ him up” but where there was no evidence Gagnard made any overt acts indicating an ability to carry out the threats or justifying a belief in Sticht that violence was imminent); Butler v. State, 632 So. 2d 684, 685 (Fla. 5th DCA 1994) (stating threat by Butler to girlfriend to physically harm her if she is around another male, “sets out a conditional threat to do injury at some unspecified future time based upon a possible eventuality, and this does not c…
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L.C. v. State, 799 So. 2d 330 (Fla. 5th DCA 2001)…’s apartment or that D.J. ever came outside. The threat in this case, that D.J. would be beaten if she came outside, was at best, a “conditional threat to do injury at some unspecified future time based upon a possible eventuality.” Butler v. State, 632 So. 2d 684, 685 (Fla. 5th DCA 1994). Taking the evidence in a light most favorable to the State, we conclude that L.C. had no apparent ability to carry out her threat, an essential element of the crime. While L.C.’s conduct may have constituted disorderly cond…
Authorities Cited
- Johnson v. Brooks, 567 So. 2d 34 (Fla. 1st DCA 1990)
- Robinson v. State, 550 So. 2d 1186 (Fla. 5th DCA 1989)
- Bell v. Anderson, 414 So. 2d 550 (Fla. 1st DCA 1982)