Florida Criminal Law Opinions

JOHN TODD PALLIN, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D05-4774

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

September 28, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Escambia County. John P. Kuder, Judge.

COUNSEL:   Ronald W. Johnson of Kinsey, Troxel, Johnson, Walborsky & Bradley, P.A., Pensacola, for Appellant.

Bill McCollum, Attorney General, Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   KAHN, DAVIS, and THOMAS, JJ., CONCUR.

OPINION  

PER CURIAM.

Appellant appeals his conviction for conspiracy to traffic in cocaine. The charged offense was based on Appellant’s possession or purchases of cocaine from two cocaine suppliers over an 11-month period. Because each transaction involved less than 28grams of cocaine, and no evidence established a specific agreement to purchase more than 28 grams of cocaine, we reverse his conviction for conspiracy to traffic in cocaine. See Switzer v. State, 940 So. 2d 1248 (Fla. 1st DCA 2006). However, because we find that the State proved beyond a reasonable doubt that Appellant conspired to purchase or possess cocaine with the intent to purchase, in violation of sections 777.04(3) and 893.13(2)(a)(1), Florida Statutes (2003), a lesser-included charge of conspiracy to traffic, we direct the trial court to enter a conviction on the lesser-included charge. See §924.34, Fla. Stat. (2003)  [*2]  (permitting an appellate court to direct the trial court to enter a judgment on a lesser-included charge when it determines the evidence is insufficient to support a conviction).

Florida law defines the crime of conspiracy as occurring where a person “agrees, conspires, combines, or confederates with another person or persons to commit any offense[.]” §777.04(3), Fla. Stat. (2003). “The crime of conspiracy involves an express or implied agreement between two or more people to commit a criminal offense.” State v. Russell, 611 So. 2d 1265, 1267 (Fla. 2d DCA 1992).

Reviewing the evidence here in a light most favorable to the State, including all reasonable inferences resulting from the evidence, the facts presented here demonstrate that Appellant participated in more than a simple “buy-sell” or “spot sale” agreement with his suppliers. See Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981) (explaining that an appellate court must resolve all conflicts in the evidence and all reasonable inferences therefrom in a light most favorable to the verdict). Appellant knew his suppliers were engaged in an ongoing agreement between themselves to purchase cocaine and then to supply Appellant and others  [*3]  with the cocaine. This relationship necessarily required Appellant’s suppliers to purchase and possess cocaine so that he could then purchase or possess a smaller portion of the cocaine. Further, Appellant occasionally incurred debt to his suppliers when making his purchases and also involved his girlfriend in the crime.

Because this evidence demonstrates that Appellant and his suppliers shared a common objective to purchase or possess cocaine with the intent to purchase, it is sufficient to sustain a conviction for conspiracy to purchase or possess cocaine with intent to purchase. See, e.g., Pino v. State, 573 So. 2d 151, 152 (Fla. 3d DCA 1991) (”Where … the defendants are involved in a series of meetings, arrangements, and negotiations to sell or buy illegal drugs from an undercover police officer which eventually leads to such a sale or purchase, Florida courts have generally sustained convictions for conspiracy to commit the offense of drug trafficking based on this conduct.”).

This is not a case where Appellant was marginally involved with other criminal actors or simply purchased cocaine from a supplier. Cf. Ashenoff v. State, 391 So.2d 289, 290-91 (Fla. 3d DCA 1980) (reversing  [*4]  appellants’ conspiracy convictions where the appellants were present at the scene of the offense but their conversations related only to offenses for which they were acquitted). Neither is this a case where Appellant simply aided and abetted another principal in committing the crime of drug possession. Cf. Ramirez v. State, 371 So. 2d 1063, 1065 (Fla. 3d DCA 1979) (reversing appellants’ convictions for conspiracy to possess marijuana where no evidence demonstrated an agreement to possess the marijuana). Here, Appellant repeatedly possessed cocaine; his suppliers were simply first to possess it. Appellant could not possess the cocaine from his suppliers and co-conspirators unless they first possessed it; therefore, the evidence supports a conviction for conspiracy to purchase or possess cocaine with intent to purchase. Cf. Williams v. State, 908 So.2d 1166, 1167 (Fla. 1st DCA 2005) (reversing conviction for possession with intent to sell based on aiding or abetting, where “evidence presented indicated that appellant was either the intended seller or intended purchaser, not an aid to either.”).

We reject Appellant’s contention that federal decisions holding that no conspiracy exists when  [*5]  the participants are on different sides of the transaction apply to our analysis. While federal law specifically requires that the participants commit an additional act beyond mere possession of contraband in order to be convicted of conspiracy to traffic, Florida law does not require an additional act. See 21U.S.C. §841(a)(1) (2006); §893.135(1)(b)(1), Fla. Stat. (2003). Therefore, we find the better view is expressed in United States v. Miller, in which the Eighth Circuit held that “‘evidence of multiple sales of resale quantities of drugs is sufficient in and of itself to make a submissible case of conspiracy to distribute.’” 91 F.3d 1160, 1162 (8th Cir. 1996) (quoting United States v. Eneff, 79 F.3d 104, 105 (8th Cir. 1996)). Although the court in Miller determined the same principle does not apply to repeated transactions of smaller amounts of drugs, we conclude that its rationale is persuasive because, under Florida law, a conviction for trafficking may be obtained based on mere possession. Thus, the evidence presented here of multiple sales of a resale quantity of cocaine permits a conviction on the lesser-included offense of conspiracy to purchase or possess cocaine with the intent  [*6]  to purchase.

Further, we find the concerns expressed in United States v. Moran, 984 F.2d 1299 (1st Cir. 1993), that the special dangers of conspiracy are “not present if one merely sells the same cocaine to another without prearrangement and with no . . . interest in its intended use” unpersuasive, as the dangers of a conspiracy, such as the commission of other crimes in furtherance of the conspiracy, are present here.

Accordingly, we remand with directions to reverse Appellant’s conviction on CountII for conspiracy to traffic in cocaine and enter a conviction for conspiracy to purchase or possess cocaine with the intent to purchase, in violation of sections 777.04(3) and 893.13(2)(a)(1), Florida Statutes (2003). We affirm all other issues raised by Appellant.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions consistent with this opinion.

KAHN, DAVIS, and THOMAS, JJ., CONCUR.

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HENRY BROWN, JR., Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D05-2275

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

September 28, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Flagler County, Kim C. Hammond, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   GRIFFIN, J. ORFINGER and EVANDER, JJ., concur.

OPINION BY:   GRIFFIN

OPINION  

GRIFFIN, J.

Appellant, Henry Brown, Jr. (”Brown”), appeals his sentence for aggravated assault and aggravated battery. We reverse.

Brown was charged by information with one count of attempted second-degree murder (Count I) and one count of aggravated battery with a deadly weapon causing great bodily harm (Count II). Brown was convicted by a jury of the lesser included offense of aggravated assault in Count I and aggravated battery as charged in Count II. n1

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Aggravated assault is a third-degree felony punishable by a maximum of five years’ incarceration and aggravated battery is a second-degree felony punishable by a maximum of fifteen years’ incarceration.
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A sentencing hearing was conducted on June 24, 2005. Brown’s scoresheet reflected a sentencing range between 95.25 months and twenty years of incarceration. During the hearing,  [*2]  the State asked for the maximum available sentence of twenty years based on Brown’s violent prior criminal record. n2 In response to a question from the Court, the prosecutor replied:

The most I could do on count one, Your Honor, would be the 15 years because it’s a second-degree felony.Brown then argued for a downward departure or a term of supervision. Thereafter, consistent with the prosecutor’s prior statement as to the maximum available sentence for Count I, the trial court orally pronounced the following sentence:

It’s the sentence of this court that on count one he be sentenced to 14 years in the Department of Corrections. On count two be [sic] sentenced to five years in the Department of Corrections. That will be concurrent rather than consecutive, and he will be given credit for time served.The problem, however, was that it was Count II that carried a fifteen year statutory maximum. Count I was subject to a five year maximum sentence. The written sentence initially comported with the oral pronouncement; however, apparently on the same day, the sentencing judge changed the sentence to reflect five years on Count I and fourteen years on Count II.

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Brown’s prior record includes,  [*3]  among others, an escape, an aggravated assault with a deadly weapon, two domestic violence batteries, and two drug convictions.
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Brown then filed a rule 3.800(b) motion n3 to correct an illegal sentence, arguing that the oral pronouncement of the fourteen-year sentence for Count I was illegal. The State countered that, under this Court’s opinion in Sands v. State, 899 So. 2d 1208 (Fla. 5th DCA 2005), the sentence could lawfully be “restructured” to reflect a sentence of five years on Count I and fourteen years on Count II. The State also filed its own rule 3.800(b) motion to correct sentence. The trial judge, Kim C. Hammond, entered an order granting the State’s motion, noting in the order that the sentencing judge, Senior Judge Hitt, had corrected the written sentence on the day of sentencing. The order states:

At sentencing … the Court initially indicated 14 years on the aggravated assault and 5 years on aggravated battery on the written judgment and sentence, however that was changed to reflect the Court’s oral pronouncement of five years on the aggravated assault and 14 years on the aggravated battery. n4 Judge Hitt initialed these corrections on the written judgment and sentence. …  [*4]  Therefore, it was the intent of the Court to sentence [Brown] to 14 years on the aggravated battery and 5 years for aggravated assault. The State’s Motion being timely filed pursuant to Florida Rule of Criminal Procedure 3.800(b) and specifically alleging a correctable scrivener’s error it is hereby

ORDERED AND ADJUDGED the State’s Motion to Correct Sentence is Granted, nunc pro tunc, sentencing [Brown] to 5 years on count one, aggravated assault and 14 years on count two, aggravated battery.(emphasis added) (footnote supplied).

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Fla. R. Crim. P. 3.800(b).4

The order rendered by Judge Hammond misapprehends the facts. The transcript clearly shows that the orally pronounced sentence was fourteen years for Count I and five years for Count II. This does not appear to be a scrivener’s error as the order indicates.
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On appeal, Brown argues that his fourteen-year sentence for Count I is illegal because it exceeds the statutory maximum, which in this case is 95.25 months, the “lowest permissible” sentence under the scoresheet. n5 See Butler v. State, 838 So. 2d 554, 556 (Fla. 2003). He also claims the court was not permitted to increase his sentence under Count II because the sentence imposed was  [*5]  legal and he already had begun to serve the sentence. The State says that under Sands it was permissible for the lower court to restructure Brown’s sentence so long as his aggregate sentence did not exceed the maximum lawful sentence and is not vindictive.

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§ 921.0024(2), Fla. Stat. (2005).
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It is well established that a court’s oral pronouncement of a sentence controls over the written sentencing document. See Williams v. State, 957 So. 2d 600, 603 (Fla. 2007); Ashley v. State, 850 So. 2d 1265, 1268 (Fla. 2003); Justice v. State, 674 So. 2d 123, 126 (Fla. 1996). When the written sentence results in a sentence that is more severe than the sentence announced in court, the sentence is illegal and must be corrected. The issue in this case is whether it was permissible for the court to amend Brown’s written sentence, contrary to the oral pronouncement, by switching the sentences for Count I and Count II.

We begin by concluding that our Sands decision has no application to this case. The Sands court simply followed prior precedent that permits a court to restructure a sentence in a manner that effectuates the governing plea agreement. In reaching its decision, the Sands court stated:

We acknowledge  [*6]  that the outcome here may not be to [appellant’s] liking. After all, it is quite obvious that the essence of his complaint is not that he has been deprived of the benefit of his bargain; rather, it is that he did not receive from the trial court a less severe sentence than he bargained for. We believe, however, that a plea agreement should be adhered to by both parties if it is legally permissible to do so. The trial court attempted to provide both [appellant] and the State what they were entitled to under their plea agreement, but it made a mistake in the calculation of the total probationary sentence. We will correct that error by requiring the trial court to reduce [appellant’s] aggregate probationary sentence by 4.8 months.899 So. 2d at 1211-12.

Shepard v. State, 940 So. 2d 545 (Fla. 5th DCA 2006), is more to the point. Here, the issue on appeal was whether the trial court violated appellant’s double jeopardy rights by recalling the parties after the sentencing hearing had concluded and then changing its oral pronouncement of concurrent to consecutive on one of appellant’s sentences. In Shepard, the lower court orally pronounced that the appellant was sentenced to thirty years on  [*7]  Count I and five years on Count II, with these sentences to run consecutively. As to Count III, the court sentenced him to thirty years and stated the sentence would be concurrent with the sentences imposed in Counts I and II. The court concluded the hearing after he advised appellant of his right to appeal and confirmed there were no other matters that needed to be addressed. Approximately fifteen minutes later, the trial judge recalled the parties, acknowledged a mistake and changed the sentence from concurrent to consecutive. The Shepard court noted that the trial court’s oral pronouncement was unambiguous and said that although the lower court was permitted to correct its misstatement prior to the conclusion of the sentencing hearing, a trial court’s pronouncement becomes final when the sentencing hearing ends. Id. at 548.

The Supreme Court’s decision in Ashley also applies. In Ashley, the defendant was charged with possession of a firearm by a convicted felon. Prior to trial, the state filed a notice of intent to classify the defendant as a habitual violent felony offender (HVFO) based on a prior robbery conviction. At trial, the jury found him guilty as charged.

At the sentencing  [*8]  hearing, the prosecutor requested that the defendant be sentenced as an HVFO. Defense counsel requested the trial court to exercise its discretion not to sentence him as an HVFO. On the following day, the trial court pronounced sentence. The trial court orally sentenced the defendant as a habitual felony offender (HFO) and sentenced him to twenty-five years in prison.

The written judgment and sentence indicated that the defendant had been sentenced as an HVFO to twenty-five years in prison with no minimum mandatory term noted on the written form. Three days later, the defendant was brought back to court and orally sentenced to twenty-five years as an HVFO. For the first time, the court imposed a ten-year minimum mandatory term. The new written judgment and sentence was consistent with the court’s second oral pronouncement. The supreme court held the resentencing of the defendant violated his constitutional right against double jeopardy. Ashley, 850 So. 2d at 1267.

In the present case, it appears the sentencing judge may have been inadvertently misled into getting the sentences for the two counts backwards. Nonetheless, such an error cannot be changed once the sentencing hearing has concluded,  [*9]  at least where the originally pronounced sentence was neither ambiguous nor illegal. The court was obliged to correct the illegal sentence in Count I but was not permitted to change the legal sentence on Count II after Brown began to serve his sentence. See Wilhelm v. State, 543 So. 2d 434, 435 (Fla. 2d DCA 1989). We see no impediment, however, upon resentencing, in having Count I and Count II run consecutively, rather than concurrently, if that more accurately reflects the sentencing intent.

REVERSED and REMANDED.

ORFINGER and EVANDER, JJ., concur.

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HOWELL M. RAMSEY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-411

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

September 28, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Robert A. Foster, Jr., Judge.

JUDGES:   VILLANTI, Judge. WHATLEY and DAVIS, JJ., Concur.

OPINION BY:   VILLANTI

OPINION  

VILLANTI, Judge.

Howell Ramsey’s conviction and life sentence for first-degree murder became final when this court issued the mandate on his appeal in April 1997. Under usual circumstances, Mr. Ramsey would have been required to file any postconviction motions within two years of that date. Thus, when he filed his motion pursuant to Florida Rule of Criminal Procedure 3.850 in June 2005, the postconviction court dismissed it as untimely. The postconviction court also denied Mr. Ramsey’s subsequent motion for reconsideration on the sole ground that “[e]xtradition is not one of the listed exceptions” to the two-year time limit as enunciated in rule 3.850(b).

This is not the usual case, however, and the postconviction court erred when it dismissed Mr. Ramsey’s motion without considering the allegation that he had been imprisoned in New York State from the time that his judgment and sentence became final until June 2003, during which time he was unrepresented by counsel and had no access to Florida law materials.  [*2]  In Demps v. State, 696 So. 2d 1296, 1298-99 (Fla. 3d DCA 1997), the Third District held that a defendant incarcerated in an out-of-state prison with no access to Florida legal materials was essentially deprived of access to the Florida courts as provided in article I, section 21, of the Florida Constitution. The court held that

it would be a violation of Demps’ right of access to court under the Florida and federal constitutions to hold that his motion for postconviction relief is time-barred given that he did not have access to Florida legal materials, or a reasonable alternative, for the entire period within which he had to file the motion.Id. at 1299; see also John v. State, 826 So. 2d 496 (Fla. 3d DCA 2002). Other district courts of appeal have followed the sound reasoning of the Demps case in holding that the time for filing a rule 3.850 motion can be tolled. See Lopez-Merced v. State, 949 So. 2d 362 (Fla. 5th DCA 2007); Kirk v. State, 707 So. 2d 948 (Fla. 1st DCA 1998).

The rationale for permitting the congruence of certain limited, rarely occurring circumstances to toll the time for a prisoner to file a rule 3.850 motion derives from the fundamental right of access to the courts.  [*3]  As the Florida Supreme Court noted when it fashioned the “mailbox rule” in Haag v. State, 591 So. 2d 614, 617 (Fla. 1992):

Under the Florida Constitution, all persons have a right to equal protection of the laws, particularly in matters affecting life and liberty. Art. I, § 2, Fla. Const. Obviously, this includes a right of equal access to the courts, which serve as the final arbiter of whether life or liberty may be forfeited lawfully.It stands to reason, as the court observed in Demps, that an uncounseled prisoner held in an out-of-state jurisdiction who is not represented by counsel and who does not have access to Florida statutes, rules, and forms has been deprived of meaningful access to the Florida courts. 696 So. 2d at 1298-99.

It appears from the numerous documents that Mr. Ramsey attached to his sworn motion that he was continuously incarcerated in New York State from a time before the mandate on his direct appeal issued until June 26, 2003, when he was returned to Hillsborough County for transfer to a Florida state prison. Those documents also reflect that Mr. Ramsey was represented by counsel for his direct appeal but that this representation was specifically concluded after  [*4]  the affirmance of the appeal. It appears that under all of these circumstances–incarceration out-of-state, lack of access to Florida legal materials, and lack of representation by counsel–the two-year time limit for filing the motion was tolled and did not begin to run until Mr. Ramsey was transferred to a Florida prison. Thus, on the face of Mr. Ramsey’s unrefuted motion and attachments that were before the postconviction court, the two-year time for filing his postconviction motion had not expired when Mr. Ramsey delivered the motion to prison authorities for mailing on June 16, 2005.

Accordingly, we reverse and remand for further proceedings. If the postconviction court finds that the documents attached to Mr. Ramsey’s motion are insufficient to establish that his out-of-state incarceration tolled the time for filing this motion, it shall hold further proceedings on the timeliness issue. See Lopez-Merced, 949 So. 2d at 363; Ballester v. State, 781 So. 2d 503 (Fla. 3d DCA 2001); Rolling v. State, 767 So. 2d 570 (Fla. 3d DCA 2000). Otherwise, the postconviction court shall consider the motion on the merits.

Reversed and remanded as directed.

WHATLEY and DAVIS, JJ., Concur.

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CLIFTON LINDQUIST, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-5621

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

September 28, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Richard A. Luce, Judge.

JUDGES:   ALTENBERND, Judge. FULMER and CASANUEVA, JJ., Concur.

OPINION BY:   ALTENBERND

OPINION  

ALTENBERND, Judge.

Clifton Lindquist appeals the order denying his motion to correct illegal sentences pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm but write to explain a scrivener’s error in his written sentences.

Mr. Clifton has a long and serious criminal record. In case number 97-15000 in the Circuit Court for Pinellas County, Mr. Clifton was sentenced in February 1998 to two concurrent thirty-year terms of imprisonment with minimum mandatory terms of thirty years. These sentences arose from two offenses committed in August 1997. He qualified for sentencing as a violent career criminal in these cases under sections 775.084(1)(c), (4)(c)(2), Florida Statutes (1997). Those statutes permitted a maximum sentence of forty years’ imprisonment with a minimum term of thirty years’ imprisonment for each count. The transcript clearly shows that the trial court made the findings necessary to sentence Mr. Lindquist under these statutes.

The sentencing forms used by the trial court to reduce these  [*2]  sentences to writing did not contain a section for sentencing as a violent career criminal. The trial court checked the box for sentencing as a habitual violent felony offender and entered a minimum term of thirty years in the space provided for the minimum term under such sentencing. The form recites that this sentence is imposed in accordance with the provisions of section 775.084(4)(b). If that were the case, the thirty-year minimum mandatory term would exceed the lawful limit. Because the oral pronouncement in the transcript makes it clear that the judge was imposing a violent career criminal sanction and not a habitual violent felony offender sanction, we treat this use of the form as a scrivener’s error and affirm the order denying the motion to correct illegal sentence.

Affirmed with directions to the court to correct the scrivener’s error in the sentences.

FULMER and CASANUEVA, JJ., Concur.

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WILLIAM JUNIOR SMITH, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-6039

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

September 28, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Hillsborough County; William Fuente, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   FULMER, Judge. WHATLEY and CASANUEVA, JJ., Concur.

OPINION BY:   FULMER

OPINION  

FULMER, Judge.

William Junior Smith challenges his convictions for battery on a law enforcement officer and obstructing or opposing an officer with violence. We reverse the convictions because the State failed to show that the officers were engaged in the lawful execution of a legal duty when they attempted to detain Smith.

Smith argues that the trial court erred when it denied his motion for judgment of acquittal. We review the denial of a motion for judgment of acquittal de novo. Lester v. State, 891 So. 2d 1219, 1220 (Fla. 2d DCA 2005).

During the argument on the motion for judgment of acquittal, the defense argued that the State had not proved that the officers were acting in the lawful execution of a legal duty. The trial court interjected: “Let me stop you. You can never resist anything with violence.” At the time  [*2]  the trial court made this statement, it was consistent with the case law of this district. See Rodriquez v. State, No. 2D05-1929, 2D05-3481, 32 Fla L. Weekly D1615 (Fla. 2d DCA June 29, 2007) (citing Lang v. State, 826 So. 2d 433, 435 (Fla. 2d DCA 2002); Nesmith v. State, 616 So. 2d 170, 171-72 (Fla. 2d DCA 1993); Kaigler v. State, 913 So. 2d 1254, 1255 (Fla. 2d DCA 2005), quashed, 944 So. 2d 340 (Fla. 2006), opinion on remand, 947 So. 2d 671 (Fla. 2d DCA 2007)). However, while this case was pending on appeal, the Florida Supreme Court decided Tillman v. State, 934 So. 2d 1263 (Fla. 2006), which clarifies the law applicable to this case.

Under Tillman, if an officer is not engaged in the lawful performance of a legal duty when the defendant’s use of force occurs, the proper analysis of the judgment of acquittal motion depends upon whether the use of force occurred either (a) before the defendant was placed under arrest (a “non-arrest case”) or (b) during or after an actual arrest (an “arrest case”). See Tillman, 934 So. 2d at 1269-71; J.H.M. v. State, 945 So. 2d 642, 644-46 (Fla. 2d DCA 2006); State v. Roy, 944 So. 2d 403, 405-06 (Fla. 3d DCA 2006).

In J.H.M., this court stated that “it  [*3]  is unlikely that J.H.M.’s case ever became an ‘arrest case’ because there is no evidence in the current record that any officer ever communicated ‘an intention or purpose then and there to effect an arrest.’” 945 So. 2d at 646 (quoting Bulgin v. State, 912 So. 2d 307, 313-14 (Fla. 2005) (Bell, J., concurring)). In the instant case, there was conflicting evidence as to whether the officers involved intended to arrest Smith when they attempted to detain him. There was no evidence that an intent to arrest was communicated to Smith by the officers. Thus, we conclude that this case involved a non-arrest scenario when the battery was committed. Further, we agree with Smith that the State did not show that the officers who chased Smith and ordered him to stop had a reasonable suspicion that a crime was being committed.

Because the State’s proof did not establish the crimes for which Smith was convicted, we reverse the convictions. On remand, the trial court should adjudicate Smith guilty of simple battery as a lesser-included offense of battery on a law enforcement officer and sentence him for the first-degree misdemeanor. See Rodriguez, 32 Fla. L. Weekly at D1617. The trial court should enter  [*4]  a judgment of acquittal to the charge of obstructing or opposing an officer with violence. See id.

Reversed and remanded with directions.

WHATLEY and CASANUEVA, JJ., Concur.

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