ROBERT LOGAN MORLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the conviction for resisting arrest without violence must be reversed because the common law right to resist an illegal arrest without force has not been abrogated by statute, but the conviction for attempted battery upon a law enforcement officer is affirmed as the investigation constituted lawful performance of duty.
The defendant was arrested for fighting, an offense not committed in the officer's presence, making the arrest improper. While resisting this improper…
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PER CURIAM.
This is an appeal from a conviction and sentence for resisting an officer without violence and attempted battery upon a law enforcement officer. Robert -Logan Morley was initially arrested for fighting, a misdemeanor that was not committed in the presence of a law enforcement officer. That arrest was improper. Section 901.15, Florida Statutes (1977). In fact, it was later determined that Morley was not involved in the fight. In the course of the arrest Morley resisted. He was charged with resisting arrest with violence and was found guilty of resisting arrest without violence.
In Florida, the common law right to resist an illegal arrest with force has been abrogated by statute Section 776.051, Florida Statutes (1977). Thus, legality of the arrest is not a factor in that situation. There has been no statutory change, however, to the right to resist an illegal arrest without force. Marshall v. State, 354 So. 2d 107 (Fla. 2d D.C.A. 1978); Lowery v. State, 356 So. 2d 1325 (Fla. 4th D.C.A. 1975). Thus, we think the conviction for resisting arrest without violence must be reversed.
The conviction for attempted battery of a law enforcement officer while in the lawful performance of his duty is affirmed. The incident giving rise to that charge took place at the police station while the officers were investigating the fight that had taken place earlier. We believe that the investigation constituted the lawful performance of a legal duty.
The conviction and sentence for resisting an officer without violence is reversed. The conviction and sentence for attempted battery on a law enforcement officer is affirmed.
McCORD, C. J., and BOYER and MILLS, JJ., concur.
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Tillman v. State, 934 So. 2d 1263 (Fla. 2006)…other rule of construction governing laws that alter the common law. Enacted in 1974, section 776.051(1) abrogates the common-law right to resist an illegal arrest with force. State v. Saunders, 339 So. 2d 641, 642 n. 2 (Fla. 1976); Morley v. State, 362 So. 2d 1013, 1014 (Fla. 1st DCA 1978); Lowery v. State, 356 So. 2d 1325, 1325-26 (Fla. 4th DCA 1978). Statutes in derogation of the common law should be strictly construed, and should not be interpreted to displace the common law further than is necessary. See…
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Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981)…n 776.-’ 051(1), Florida Statutes (1974). It was concluded that one may not resist arrest with violence, even if the arrest is technically illegal. Lowery, supra, at 1326; see also Meeks v. State, 369 So. 2d 109 (Fla. 1st DCA 1979); Morley v. State, 362 So. 2d 1013 (Fla. 1st DCA 1978). The Lowery court specifically left open the question of a defendant’s right to use force in self-defense pursuant to Section 776.012, Florida Statutes (1979), which states in part that: “A person is justified in the use of forc…
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LEE v. State, 368 So. 2d 395 (Fla. 3d DCA 1979)…ct the jury on what he deemed the lesser included offense of resisting arrest without violence under Section 843.02, Florida Statutes (1977).1 A legal arrest is [*397] indispensable to demonstrate a violation of this statute, e. g., Morley v. State, 362 So. 2d 1013 (Fla. 1st DCA 1978); Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978), and, as Judge Kehoe’s opinion correctly states, there was no evidence at the trial below' that the arrest Lee was accused of resisting was in fact anything but an unlawful on…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978)
- Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978)