Florida Criminal Law Opinions

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

M.M., A Child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-1600

[October 26, 2011]

MAY, C.J.

A juvenile appeals his disposition order, having been found guilty of resisting arrest without violence. He argues the trial court erred in denying his motion for judgment of dismissal because the law enforcement officer was not executing a lawful duty when he ordered the juvenile to stop. We agree and reverse.

Officer #1 received a dispatch from an anonymous caller regarding a large group of juveniles fighting in the vicinity of 6th Avenue and Commercial Boulevard. The tip did not include a description of the individuals involved. When Officer #1 arrived, he saw four juveniles, and noticed that one of them, not the defendant, looked “disheveled,” as if he had “been in a fight.” The juvenile’s hair was “messed up.” His T-shirt was stretched out and th e collar ripped. Those were the only observations that led the officer to conclude that the juvenile had been in a fight.

Officer #1 asked the four juveniles to speak with him about the “possible fight in the area.” Two of them stopped to speak with him, one of them was the juvenile who appeared disheveled. The other two— including the defendant—proceeded southbound on 6th Avenue, ignoring the request to stop.

A second officer arrived as backup. Officer #2 saw the four juveniles, but did not see anyone fighting or running away. He observed two of the juveniles speaking to Officer #1, and two others walking briskly across the street toward him. Officer #1 then instructed Officer #2 to stop the

two juveniles who walked away.

Officer #2 approached and instructed the two juveniles to stop, but they kept walking. Officer #2 then yelled “stop.” This time one juvenile stopped, but the defendant continued walking. Officer #2 once again yelled “stop.” This time the defendant turned around and responded: “don’t raise your f—ing voice at me.” At this point, Officer #2 testified that the defendant stood in an “aggressive manner . . . almost like a fighting stance.”

Officer #2 then told the defendant to sit down. According to Officer #2, the defendant began to sit down, but did not sit down completely. Officer #2 thought the defendant was going to flee. As the defendant started to get up, he attempted to strike the officer. Officer #2 then turned and grabbed on to the defendant’s shirt. Officer #2 testified that the defendant again tried to punch him, so he turned, and returned two punches to the defendant’s face. The officer struck the defendant twice more, then apprehended and handcuffed him. The State charged the defendant with resisting arrest with violence.

After the State rested, the defense moved for a judgment of dismissal, arguing that Officer #2 was not engaged in the lawful execution of a legal duty, as required under section 843.01, Florida Statutes (2008), because he lacked reasonable suspicion to stop the juveniles. The trial court denied the motion. Defense counsel renewed the motion for judgment of dismissal at the close of its case; the trial court again denied the motion. The court found the defendant guilty of the lesser included offense of resisting arrest without violence, withheld adjudication, and ordered him to perform “ten hours of community service, attend and complete counseling/anger management, and [abide by] a court-imposed curfew.”

We review a trial court’s decision on a motion for judgment of dismissal de novo. W.W. v. State, 993 So. 2d 1182, 1184 (Fla. 4th DCA 2008).

The defendant argues the court erred in denying his motion for judgment of dismissal because Officer #2 was not engaged in the lawful execution of a legal duty when he stopped the defendant; specifically, he contends the officer lacked reasonable suspicion that the defendant had engaged or would engage in illegal activity.1 We agree. Our decision in

1 The issue of whether the officer was engaged in the lawful execution of a legal

duty applies equally to the crime of resisting an officer with violence under the

facts of this case. § 843.01, Fla. Stat. (2008); Tillman v. State, 934 So. 2d 1263,

Fuentes v. State, 24 So. 3d 1231 (Fla. 4th DCA 2009), controls.

The State must prove: “(1) the officer was engaged in the lawful execution of a legal duty and (2) the defendant’s action constituted obstruction or resistance of that lawful duty” to establish the crime of resisting arrest without violence. W.W., 993 So. 2d at 1184. To conduct an investigatory stop, a law enforcement officer must have “‘a reasonable suspicion’ that a ‘person has committed, is committing, or is about to commit a crime.’” Fuentes, 24 So. 3d at 1234 (quoting Slydell v. State, 792 So. 2d 667, 671 (Fla. 4th DCA 2001)).

To determine whether an officer had reasonable suspicion for an investigatory stop, we look at the totality of circumstances. Id. Law enforcement must be able to articulate a well-founded suspicion of criminal activity in light of the officer’s training and experience. Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). “Mere suspicion is not enough.” Id.

When an anonymous tip prompts a police investigation, it will justify a stop as long as it can be corroborated. Fuentes, 24 So. 3d at 1235. This requires the officers to observe “‘unlawful acts, unusual conduct, or suspicious behavior’” when they arrive on scene. See id. (quoting Baptiste v. State, 995 So. 2d 285, 296 (Fla. 2008)). Here, that did not occur.

As in Fuentes, two police officers responded to an anonymous tip. The anonymous caller failed to provide a description of any of the juveniles involved. When Officer #1 arrived on scene, he saw only four juveniles, one of whom looked disheveled. That juvenile stopped to talk to Officer #1 when requested. The defendant and another juvenile continued walking. Neither of them appeared disheveled, and no one witnessed any unlawful act, unusual conduct, or suspicious behavior. There was simply insufficient corroboration of the anonymous tip to provide reasonable suspicion for Officer #2 to conduct an investigatory stop of the defendant.

The State argues the arresting officer had reasonable suspicion to stop the defendant because he was in the vicinity where an anonymous caller reported a fight, and he was in the company of another juvenile who appeared disheveled. Neither of these factors, however, provided

1266 (Fla. 2006). The defendant however has only argued the issue as to the crime of resisting arrest without violence, of which the trial court found him guilty.

either officer with reasonable suspicion that the defendant was involved in criminal activity. See, e.g., Levin v. State, 449 So. 2d 288, 289 (Fla. 3d DCA 1983) (“being out on the public street during late and unusual hours cannot constitute a valid basis to temporarily detain and frisk an individual.”).

Reversed and Remanded for entry of a judgment of dismissal. STEVENSON and CIKLIN, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Elijah H. Williams, Judge; L.T. Case No. 09- 1625DL00A.

Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

KEMBRICK WALKER ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2991

[October 26, 2011]

PER CURIAM.

Affirmed. See Killings v. State, 567 So. 2d 60 (Fla. 4th DCA 1990). MAY, C.J., TAYLOR and CIKLIN, JJ., concur.

* * *

Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 93-20979 CF10A.

Kembrick Walker, Bushnell, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2011

C.R., a Child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-3867

[October 26, 2011]

PER CURIAM.

C.R. appeals a juvenile disposition order finding him guilty of possession of a weapon on school property. We conclude that the court erred in its determination that the knife is not a “common pocketknife,” which is an exception to the statutory definition of “weapon.” We reverse.

On April 29, 2009, C.R. brought a knife to his middle school and gave it to another student, asking her to hold it for him because he thought he would get caught. C.R. indicated that he brought the knife to school and intended to use it for protection against a bully. An investigation resulted in C.R. being charged by petition for juvenile delinquency with possession of a weapon on school property, in violation of section 790.115(2), Florida Statutes (2008), which states, in pertinent part:

[a] person shall not possess any firearm, electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, at a school-sponsored event or on the property of any school, school bus, or school bus stop . . . .

§ 790.115(2)(a), Fla. Stat. (2008). A “weapon” is defined under section 790.001(13), Florida Statutes (2008), as being “any dirk, knife, metallic knuckles, slingshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.” (emphasis added).

On appeal, C.R. argues that it was error for the trial court to deny the motion for judgment of dismissal. C.R. asserts that the knife was a common pocketknife and not a weapon, because the knife was a folding knife with a blade that was less than four inches in length.

In juvenile proceedings, a motion for judgment of dismissal is akin to a motion for judgment of acquittal, as the motion tests the legal sufficiency of the State’s evidence. W.W. v. State, 993 So. 2d 1182, 1184 (Fla. 4th DCA 2008). Accordingly, an appellate court reviews the denial of a motion for a judgment of dismissal de novo. R.E. v. State, 13 So. 3d 97, 98 (Fla. 4th DCA 2009). “If the evidence, taken in a light most favorable to the State does not support a conviction, the motion must be granted.” T.L.T. v. State, 53 So. 3d 1100, 1102 (Fla. 4th DCA 2011).

In L.B. v. State, 700 So. 2d 370, 372 (Fla. 1997), the Florida Supreme Court defined a “common pocketknife” as “[a] type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one’s pocket.” The Court looked to a 1951 Florida Attorney General’s opinion, which concluded that a pocketknife with a blade of four inches or less in length was a “common pocketknife.” Id. at 373 (citing Op. Att’y Gen. Fla. 051-358 (1951)). In a footnote, the Court declined to state that four inches was a bright-line cutoff for determining whether a particular knife is a “common pocketknife.” Id. at 373 n.4.

Since L.B., some courts have found that knives with distinctive weapon-like characteristics do not fall within the common pocketknife exception, even though the blades at issue were less than four inches. See J.D.L.R. v. State, 701 So. 2d 626, 627 (Fla. 3d DCA 1997) (distinguishing a knife with a pointed 3 1/2 inch blade and notched combat-style grip with a large metal hilt guard designed to prevent the user’s fingers from sliding onto the blade); K.H. v. State, 29 So. 3d 426, 428 (Fla. 5th DCA 2010) (distinguishing a knife that was a “folding-type switchblade with a double-edged blade approximately three inches in length” and determining that such features were “not usual for an ordinary or common pocketknife but more characteristic of a knife designed to be a weapon”).

Th e trial court, in its analysis, considered several weapon-like characteristics of the knife: a clip to attach to a belt, a knob that makes the blade easy to open, a locking mechanism, and a textured handle. The record does not support the ultimate conclusion of the trial court that these features distinguish the knife from a “common pocketknife”

within the definition set forth by the Florida Supreme Court. We reverse and remand for entry of a judgment of dismissal.

DAMOORGIAN and GERBER, JJ., concur.

MARX, KRISTA, Associate Judge, concurs specially with opinion.

MARX, KRISTA, Associate Judge, concurring specially.

Although I concur in this opinion, I write separately to urge the Legislature to address the issue raised by this case. Over the years, there have been variations in the statutory language and consequently the case law as to whether a person may lawfully possess a common pocketknife on school property or at a school bus stop. Compare R.H. v. State, 56 So. 3d 156 (Fla. 4th DCA 2011), with A.B. v. State, 757 So. 2d 1241 (Fla. 4th DCA 2000).

The trial court expressed concern that it would not make sense to find that the knife was a common pocketknife when it seemed more dangerous than a razor blade or box cutter, which do qualify as weapons under the statute. This is particularly troublesome in light of C.R.’s statement that he brought the knife to school because he needed it for protection against a bully and that he intended to use the knife.

In the present climate of bullying and violence on school campuses, it is difficult to reconcile the result this court must reach based on the present law. As with all cases that implicate constitutional rights, there will inevitably be conflict between two opposing ideologies. While it is important to resist a trend toward criminalization of otherwise innocent conduct, it is difficult to imagine that reasonable minds would differ as to the soundness of disallowing razor blades or box cutters on school campuses, but not knives such as the one in this case. A knife with nearly a four-inch blade can quickly become a dangerous instrument.

Sound public policy dictates that it is necessary to promote safety within schools. The Legislature could certainly fashion a law that prohibits unauthorized knives of any kind on school property without infringing upon the lawful use of some knives in other settings. Section 790.115, Florida Statutes, generally proscribes weapons on school property and excepts from its proscription “common pocketknives.” In 2006, when th e Legislature most recently changed th e statutory language which adopted th e definition of weapon from section 790.001(13), Florida Statutes (exempting pocketknives), the legal effect of this change may not have been contemplated. In practical application, this language gives anyone on a school campus or school property the

general statutory right to possess a knife with a blade of up to four inches in length. Legislative review would enable a closer look at the appropriateness of the end result mandated b y this law and an examination of whether such result was indeed the intent of the Legislature.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Steven B. Feren, Judge; L.T. Case No. 09-4621 DL00A.

Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

Bookmark It

Hide Sites