BDH v. State , 903 So. 2d 390 ( 2005 )

903 So. 2d 390 (2005)

B.D.H., a juvenile, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D04-2156.

District Court of Appeal of Florida, Third District.

June 22, 2005.

Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.

Before FLETCHER, RAMIREZ, and ROTHENBERG, JJ.

CONFESSION OF ERROR

ROTHENBERG, Judge.

The appellant, a juvenile, appeals his adjudication of delinquency, for the offense of resisting arrest without violence. Based upon the State's proper confession of error, we reverse.

The evidence presented at the delinquency hearing was that while the police were arresting the juvenile for an alleged assault, he unsuccessfully attempted to flee. The complaining witness of the assault did not appear for the delinquency hearing. The responding officers provided testimony regarding the resisting charge, but were not able to testify regarding the assault as they did not witness it. Accordingly, no testimony or evidence was presented regarding the alleged assault.

As the State concedes, the crime of resisting an officer without violence requires proof that the arrest was lawful. D.T.B. v. State, 892 So. 2d 522, 525 (Fla. 3d DCA 2004)(finding that, in order to support an obstruction charge, there must be evidence that the juvenile committed a crime upon which the officers would base an arrest); D.A. v. State, 636 So. 2d 863 (Fla. 3d DCA 1994)(explaining that the legality of an arrest is an essential element of the charge of resisting arrest without violence). As there was no evidence presented to establish the lawfulness of the arrest for assault, we reverse the adjudication of delinquency for resisting arrest without violence.

Reversed.