MICHAEL DAMIEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Damien appealed his convictions for resisting an officer without violence and resisting an officer with violence. The court vacated the misdemeanor resisting conviction because continuous resistance to arrest supports only one count, and reversed the application of the Prison Releasee Reoffender Act because his prior incarceration was in Kentucky, not Florida.
A defendant's continuous resistance to an ongoing arrest attempt supports only one count of resisting regardless of the number of officers involved. The Prison Releasee Reoffender Act applies only to releasees from Florida Department of Corrections facilities or approved private vendors, not out-of-state facilities.
[1] Continuous resistance to an ongoing attempt to effect arrest supports only one count of resisting, even when multiple officers are involved.
[2] Penal statutes must be strictly construed.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a defendant's continuous resistance to an ongoing attempt to effect his arrest will support only one count of resisting even where several officers are involved in the effort to arrest him”
Establishes the rule that multiple officers attempting arrest do not create multiple resisting charges for a single continuous act of resistance
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Join FLexlaw to unlock all legal intelligenceDamien was convicted of resisting an officer without violence and resisting an officer with violence. He was sentenced under the Prison Releasee Reoff…
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COBB, J.
The defendant appeals from his convictions and sentences for resisting an officer without violence and resisting an officer with violence.
As the state concedes, a defendant’s continuous resistance to an ongoing attempt to effect his arrest will support only one count of resisting even where several officers are involved in the effort to arrest him. See Wallace v. State, 724 So. 2d 1176 (Fla.1998); Stanley v. State, 733 So. 2d 559 (Fla. 5th DCA 1999). The defendant’s misdemeanor conviction for resisting an officer without violence is therefore vacated. See State v. Barton, 523 So. 2d 152 (Fla.1988).
We additionally conclude that the trial court erred in applying the Prison Releasee Reoffender Act, section 775.082(1), Florida Statutes, to the defendant, a recent releasee from incarceration outside the State of Florida.
The act provides in pertinent part:
(8)(a)l. “Prison releasee reoffender” means any defendant who commits, or attempts to commit:
o. Any felony that involves the use or threat of physical force or violence against an individual....
within 3 years of being released from a state correctional facility operated by the Department of Corrections or a private vendor. The defendant was sentenced under the Act based on his release in 1995 from a Kentucky state prison. He argues that he does not qualify as a prison releasee reof-fender because the Act is limited by its wording to recent releasees from incarceration with “the Department of Corrections or a private vendor.”
Penal statutes must be strictly construed. McLaughlin v. State, 721 So. 2d 1170 (Fla.1998); Perkins v. State, 576 So. 2d 1310 (Fla.1991). See also § 775.021(1), Fla. Stat. (“provisions of this code ... shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused”). By qualifying the phrase “a state correctional facility” with the phrase “operated by the Department of Corrections or a private vendor” (emphasis added), we are constrained to hold that the language is limited to a correctional facility operated by the Department of Corrections of the State of Florida. Indeed, that nomenclature would not apply in many other states.
The conviction for resisting an officer with violence is affirmed; the conviction for misdemeanor resisting is vacated; and the cause is remanded for resentencing.
AFFIRMED IN PART; VACATED IN PART; REMANDED FOR RESEN-TENCING.
W. SHARP, and GRIFFIN, JJ., concur.
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Elliott Vasquez v. State, 778 So. 2d 1068 (Fla. 5th DCA 2001)…tance of obstruction under section 843.01, and may be convicted of only one count of [*1070] resisting even where several officers are involved in the effort to arrest him. See also Davis v. State, 774 So. 2d 862 (Fla. 3d DCA 2000); Damien v. State, 743 So. 2d 611 (Fla. 5th DCA 1999); Stanley v. State, 733 So. 2d 559 (Fla. 5th DCA 1999). Thus the issue presented in these proceedings is whether the standard established in Wallace requires that Vasquez be convicted of only one charge of resisting. The State co…
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Madison v. State, 777 So. 2d 1175 (Fla. 5th DCA 2001)…ate, 761 So. 2d 482 (Fla. 5th DCA 2000). However, a continuous resistance to the ongoing attempt to effect a defendant’s arrest constitutes a single instance of resisting an officer under section 843.01, Florida Statutes (1999). See Damien v. State, 743 So. 2d 611, 612 (Fla. 5th DCA 1999) (citing Wallace v. State, 724 So. 2d 1176 (Fla.1998); Stanley v. State, 733 So. 2d 559, 559 (Fla. 5th DCA 1999)). Multiple convictions on multiple counts of resisting arrest without violence arising out of a single episode,…
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Brenton McNEIL v. State, 162 So. 3d 274 (Fla. 5th DCA 2015)…M Family Enters., 66 So. 3d 336, 340 (Fla. 5th DCA 2011) (“Because the statute is penal in nature, it must be strictly construed in favor of the one against whom the penalty is imposed and is never to be extended by construction.”); Damien v. State, 743 So. 2d 611, 612 (Fla. 5th DCA 1999) (“Penal Statutes must be strictly construed.”). Strict construction first requires analysis of the statutes to determine if legislative intent to impose costs per count or per case is clearly expressed in the text. If it is…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Perkins v. State, 576 So. 2d 1310 (Fla. 1991)
- State v. Barton, 523 So. 2d 152 (Fla. 1988)
- McLAUGHLIN v. State, 721 So. 2d 1170 (Fla. 1998)
- Castro v. State, 389 So. 3d 633 (Fla. 3d DCA 2025)
- Stanley v. State, 733 So. 2d 559 (Fla. 5th DCA 1999)