PAUL HENRY ROSENBERG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this appeal from a conviction for resisting arrest with violence, the court upheld the conviction, holding that the legality of a warrantless misdemeanor arrest depends on whether the officer had substantial reason to believe the person was committing the offense, not on whether the person was actually guilty of that offense.
The court held that the legality of a warrantless arrest for a misdemeanor depends not on actual guilt but on whether the officer had substantial reason to believe the person was committing the misdemeanor in the officer's presence. The record contained sufficient evidence that the officer had such substantial reason, and therefore resistance to the arrest could not be justified.
[1] A warrantless arrest for a misdemeanor is lawful if the arresting officer has substantial reason to believe the offense is occurring in their presence, regardless of the…
[2] The state bears the burden of proving the legality of a warrantless arrest for a misdemeanor.
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Join FLexlaw to unlock all legal intelligence“It was the state's burden to prove that the officer was making an arrest lawfully.”
Establishes the prosecution's burden in proving the legality of the warrantless arrest.
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Join FLexlaw to unlock all legal intelligenceAppellant was arrested by a Fort Lauderdale police officer for being drunk from drugs under Florida Statute Section 856.01. The officer made the arres…
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On this appeal from a conviction of resisting arrest with violence appellant’s sole *69point questions the sufficiency of the evidence to establish the legality of the arrest.
Appellant was arrested by a Fort Lau-derdale police officer on the charge of drunk from drugs, F.S. Section 856.01, F. S.A. Appellant concedes that he resisted such arrest with violence, but states that he did so justifiably because the arrest was unlawful. The police officer had no warrant and since the charge for which appellant was arrested is a misdemeanor, the arrest would be lawful only if the offense occurred in the officer’s presence.
It was the state’s burden to prove that the officer was making an arrest lawfully. Kirby v. State, Fla.App.1969, 217 So.2d 619. Appellant’s argument is that (1) the state was unable to prove that appellant was, in fact, drunk from drugs, (2) therefore he was not guilty of committing a misdemeanor in the officer’s presence, (3) hence, the arrest is rendered unlawful, and (4) ergo, the resistance to such arrest is fully justified. As we understand this argument, the legality of a warrantless arrest for a misdemeanor which is alleged to have occurred in the presence of the arresting officer necessarily depends upon actual guilt of the offense for which arrested. We must reject any such concept. The determining factor is not whether the arrested person is actually guilty, but whether or not the officer hjd substantial reason to believe that such person was committing a misdemeanor. Miami v. Albro, Fla.App.1960, 120 So.2d 23; Sanchez v. Buchanan, Fla.App.1965, 175 So.2d 50.
On this factual issue, i. e., whether the officer had substantial reason to believe that the defendant was committing a misdemeanor in the officer’s presence, we find in the record before us sufficient evidence upon which the trier of fact could reasonably conclude that the arresting officer had substantial reason to believe that appellant was drunk on drugs. Hence, the court did not err in denying appellant’s motion for judgment of acquittal, and in denying appellant’s motion for new trial, the denial of which motions is assigned as the error supporting this point on appeal.
It is clear that appellant felt that he had been arrested on a groundless charge, and that this was part of the “establishment’s” harassment of him because of his unconventional appearance. Assuming that appellant was in fact innocent of the misdemeanor for which he was arrested, the proper forum in which to deal with such charge is a court of law. Appellant’s determination to conduct his defense then and there at the scene of the arrest with a crude type of “trial by wager of battle”, while understandable as a natural impulsive reaction, nonetheless simply cannot be condoned.
The judgment is affirmed.
REED, C. J., and WHITE, JOS. S., Associate Judge, concur.
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Cited By (14 total)
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State v. Saunders, 339 So. 2d 641 (Fla. 1976)…ke without a warrant. Licata v. State, 156 Fla. 692, 24 So. 2d 98 (1945); Kirby v. State, 217 So. 2d 619 (4th DCA Fla.1969). See Jones v. State, 293 So. 2d 116 (3d DCA Fla. 1974); Smith v. State, 292 So. 2d 69 (3d DCA Fla. 1974); Rosenberg v. State, 264 So. 2d 68 (4th DCA Fla. 1972); F.S. 843.01 (1973). After the episode which gave rise to these proceedings, the legislature enacted Ch. 74-383 § 13, Laws of Florida, now codified as Section 776.051 and effective July 1, 1975. Section 776.051(1) provides: A p…
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Phillips v. State, 314 So. 2d 619 (Fla. 4th DCA 1975)…make without a warrant. Licata v. State, 156 Fla. 692, 24 So. 2d 98 (1945); Kirby v. State, 217 So. 2d 619 (4th DCA Fla.1969). See Jones v. State, 293 So. 2d 116 (3d DCA Fla.1974); Smith v. State, 292 So. 2d 69 (3d DCA Fla.1974); Rosenberg v. State, 264 So. 2d 68 (4th DCA Fla.1972); F.S. 843.01 (1973). Thus, isolating, does the public use of the expletive, F-you, standing alone, provide legally sufficient probable cause for an officer to believe defendant has breached the peace? If it does, as the State con…1 / 2
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Burt Smith v. State, 292 So. 2d 69 (Fla. 3d DCA 1974)…ssary to demonstrate that the officer was making an arrest which he had the lawful authority to make without a warrant. Roberts v. State, Fla.App. 1962, 142 So. 2d 152; Kirby v. State, Fla.App.1969, 217 So. 2d 619; Rosenberg v. State, Fla.App. 1972, 264 So. 2d 68. A law enforcement officer in this state has the power to make a lawful arrest without a warrant when he has reasonable grounds to believe that a felony has been committed and that the person arrested committed it. State v. Outten, Fla. 1968, 206 So…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kirby v. State, 217 So. 2d 619 (Fla. 4th DCA 1969)
- City OF Miami v. Albro, 120 So. 2d 23 (Fla. 3d DCA 1960)
- Lewis v. Harper, 120 So. 2d 23 (Fla. 2d DCA 1960)
- Sanchez v. Buchanan, 175 So. 2d 50 (Fla. 3d DCA 1965)