NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
M.R., )
)
Appellant, )
)
v. ) Case No. 2D15-3651
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed August 12, 2016.
Appeal from the Circuit Court for
Hillsborough County; Barbara Twine
Thomas, Judge.
Howard L. Dimmig, II, Public Defender, and
Alisa Smith, Assistant Public Defender,
Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Johnny T. Salgado,
Assistant Attorney General, Tampa, for
Appellee.
BLACK, Judge.
M.R. challenges his adjudication of delinquency for two counts of battery
on a law enforcement officer, one count of resisting an officer with violence, and one
count of resisting an officer without violence. M.R. contends that the trial court erred in
denying his motion for judgment of dismissal because the law enforcement officer was
not executing a legal duty when he initially ordered M.R. to stop. We agree, in part, with
M.R.'s argument and reverse the adjudication for resisting an officer without violence;
we affirm in all other respects.
At the adjudication hearing, the arresting officer testified that he was
completing his usual patrol through an apartment complex when he saw four juveniles
on bicycles. The juveniles apparently saw the officer's vehicle and rode behind one of
the buildings. The officer testified that he found the juveniles' actions suspicious and
wanted to know why they went from riding in the street to riding behind a building. He
radioed that he was exiting his vehicle and went behind the building on foot, but the
juveniles were not there. As the officer was returning to his vehicle, he saw M.R. riding
away and directed him to stop in order to make contact with him. M.R. did not stop.1
"We review the trial court's denial of the motion for dismissal under the de
novo standard," viewing the evidence "in the light most favorable to the State." R.R.W.
v. State,
915 So. 2d 633, 634-35 (Fla. 2d DCA 2005). Section 843.02, Florida Statutes
(2014), provides that "[w]hoever shall resist, obstruct, or oppose any officer . . . in the
lawful execution of any legal duty, without offering or doing violence to the person of the
officer, shall be guilty of a misdemeanor of the first degree." "The threshold for
establishing the commission of an offense under this statutory provision is that the
officer be in the 'lawful execution' of a 'legal duty.' To meet this threshold, the conduct
1
As we are reversing only the resisting without violence charge, we
discuss only those relevant facts.
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of the officer must be consistent with the Fourth Amendment and any other relevant
requirements of law." C.E.L. v. State,
995 So. 2d 558, 560 (Fla. 2d DCA 2008) (en
banc), approved,
24 So. 3d 1181 (Fla. 2009).
"[A]s a general rule, flight, standing alone, is insufficient to form the basis
of a resisting without violence charge." C.E.L. v. State,
24 So. 3d 1181, 1186 (Fla.
2009). "To be guilty of unlawfully resisting an officer, an individual who flees must know
of the officer's intent to detain him, and the officer must be justified in making the stop at
the point when the command to stop is issued."
Id. That is, "flight in knowing defiance
of a law enforcement officer's lawful order to stop constitutes an act of resisting,
obstructing, or opposing an officer in the lawful execution of a legal duty." C.E.L.,
995
So. 2d at 561.
An officer's command to stop is lawful if there is "reasonable and well-
founded suspicion that criminal activity has occurred or is about to occur." C.E.L.,
24
So. 3d at 1186; accord Palmer v. State,
112 So. 3d 606, 607 (Fla. 4th DCA 2013). And
"[w]hether an officer's suspicion is reasonable is determined by the totality of the
circumstances which existed at the time of the stop and is based solely on facts known
to the officer before the stop." S.S. v. State,
154 So. 3d 1217, 1220 (Fla. 4th DCA
2015) (quoting Fuentes v. State,
24 So. 3d 1231, 1234 (Fla. 4th DCA 2009)).
The officer's testimony failed to establish that he had a reasonable
suspicion of criminal activity when he ordered M.R. to stop. Therefore, the evidence
was insufficient to establish that the officer was executing a lawful duty at that time. Cf.
C.E.L.,
995 So. 2d at 564 (Altenbernd, J., concurring) ("If these teenagers lived on
Bayshore Boulevard in Tampa, or in Carrollwood or Temple Terrace, they would have
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been free to run when they saw the deputies. Running would not have created a basis
for a Terry stop or the foundation for a misdemeanor."). As a result, M.R.'s adjudication
for resisting an officer without violence must be reversed.
Affirmed in part, reversed in part, and remanded.
MORRIS and BADALAMENTI, JJ., Concur.
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