JOHN HARVIN MARSHALL AND EDDIE RUTH MARSHALL, PETITIONERS,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida District Court of Appeal reversed the conviction of Eddie Ruth Marshall for driving without a license because the state failed to prove she actually drove a vehicle, only that she sat in the driver's seat. The court also reversed her resisting arrest conviction because her arrest was unlawful and she used no force in resisting it.
Eddie Ruth Marshall's convictions must be quashed. The conviction for driving without a license fails because the state proved only that she sat in the driver's seat, not that she actually drove the vehicle. The resisting arrest conviction must also be quashed because her arrest was unlawful and she used no force in resisting it, and the common law right to resist an unlawful arrest without force remains valid.
[1] A conviction for driving without a license requires proof that the defendant actually drove a motor vehicle, not merely that they were in physical control of it.
[2] Resisting an unlawful arrest without the use of force remains permissible under Florida law.
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Join FLexlaw to unlock all legal intelligence“Unlike Section 316.028, Florida Statutes (1975), to be in actual physical control of a motor vehicle is not enough to convict for driving without a license.”
Establishes that the state must prove actual driving, not merely being in control of the vehicle
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Join FLexlaw to unlock all legal intelligenceEddie Ruth Marshall was observed by a police officer getting into a car and sitting in the driver's seat, but there was no evidence the car moved or t…
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PER CURIAM.
Petitioner Eddie Ruth Marshall was charged with driving a motor vehicle without a driver’s license and resisting arrest without violence. Petitioner John Harvin Marshall was charged with resisting arrest without violence, interfering with a police officer, and assault on a police officer. Both petitioners were tried by a jury in a joint trial in county court.
At the close of the state’s case, the court directed a verdict of acquittal on the charge of resisting arrest without violence against Mr. Marshall. The jury found the petitioners guilty as charged on the remaining counts. On appeal to the circuit court the judgments of guilt were affirmed. The petitioners seek review of the circuit court order by petition for certiorari.
Our standard for review on common law certiorari is whether there was a departure from the essential requirements of law. Clermont Marine Sales, Inc. v. Harmon, 347 So. 2d 839 (Fla. 2d DCA 1977). Measured by this criterion, the convictions of Eddie Ruth Marshall must be quashed, but the convictions of John Harvin Marshall need not be disturbed.
Section 322.03, Florida Statutes (1975) specifies that no person shall drive a motor vehicle upon a highway in this state without a valid license as an operator or chauffeur. While there is nothing in this record to indicate that Eddie Ruth Marshall had a driver’s license, there was also no evidence whatsoever to prove that she ever drove a motor vehicle. The arresting officer observed her getting into a car and sitting down in the driver’s seat. He said nothing about the car having moved or the ignition having been turned on. Unlike Section 316.028, Florida Statutes (1975), to be in actual physical control of a motor vehicle is not enough to convict for driving without a license. Surely, the conviction of a crime without proof of an essential element must constitute a departure from the essential requirements of law.
Since the arresting officer had no warrant and there was no evidence that Eddie Ruth Marshall had committed even a misdemeanor in his presence, the arrest of Ms. Marshall was unlawful.
Section 901.15, Florida Statutes (1975). At common law, one could resist an unlawful arrest with impunity. Burgess v. State, 313 So. 2d 479 (Fla. 2d DCA 1975).
However, in 1974 our legislature enacted Section 776.051 which prohibits the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer regardless of the legality of the arrest. In view of the fact that Section 776.051, Florida Statutes (1975) proscribes only the use of force in resisting arrest, we must assume that the common law rule, long recognized in Florida, remains in effect with respect to the right to resist an unlawful arrest without resorting to the use of force. Eddie Ruth Marshall was charged with resisting arrest without violence, and there was no evidence that she used any force to resist her arrest. She simply ran off when her brother assailed the police officer for having placed her under arrest.
Certiorari is granted to the extent that the convictions of Eddie Ruth Marshall are hereby quashed; otherwise, the petition for certiorari is denied.
HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur.
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Cited By (11 total)
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Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978)…violence. Had defendant resisted arrest without violence, then the legality of his arrest would be a factor since in Florida, the common-law rule that one can resist without [*1326] violence an unlawful arrest remains in effect. Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978). Until recently, Florida law even permitted the use of force to resist an unlawful arrest. E. g. State v. Saunders, 339 So. 2d 641, 642, n. 2 (Fla.1976). However, in 1974 the legislature modified the common-law rule by enacting Se…
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LEE v. State, 368 So. 2d 395 (Fla. 3d DCA 1979)…ry v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978); and Adlington v. State, 350 So. 2d 1148 (Fla.3d DCA 1977). We also note that appellant has a common law right to resist an unlawful arrest without the use of violence. See, e. g., Marshall v. State, 354 So. 2d 107 (Fla.2d DCA 1978); and Adlington v. State, 350 So. 2d 1148 (Fla.3d DCA 1977). For the reasons set forth above, appellant’s conviction and sentence for disorderly conduct are affirmed; and his conviction and sentence for resisting an officer without…
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Johnson v. State, 395 So. 2d 594 (Fla. 2d DCA 1981)…rrest without violence under section 843.02 must also fail. Proof of the lawfulness of the arrest is an essential element of that offense. Lee v. State, 368 [*597] So. 2d 395 (Fla. 3d DCA), cert. denied, 378 So. 2d 349 (Fla.1979); Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA), cert. denied, 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978). The county court’s rulings in the instant case were clearly correct, and the circuit court departed from the essential requirements of the law in reversing those rulin…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clermont Marine Sales, Inc. v. Binion Gaines Harmon, 347 So. 2d 839 (Fla. 2d DCA 1977)
- Bryant v. State, 313 So. 2d 479 (Fla. 1st DCA 1975)