Jackson v. State, 84-236

Decision Date17 January 1985
Docket NumberNo. 84-236,84-236
Citation463 So.2d 372,10 Fla. L. Weekly 223
Parties10 Fla. L. Weekly 223 David G. JACKSON, Jr., Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Chief Judge.

The defendant below, David G. Jackson, Jr., was charged in a three-count information with the offenses of: (1) fleeing a police officer; (2) battery on a law enforcement officer; and (3) resisting arrest with violence. The facts giving rise to these charges show that Wandell, a patrolling police officer, became suspicious of three black males standing in the street. As Wandell approached them, the defendant got into his automobile and drove away. Wandell radioed for assistance "to catch the vehicle," and two other officers, Borges and Brewster, followed Jackson in their patrol cars with lights flashing. At one point the defendant stopped, but then drove off again. The officers pursued with sirens sounding. Finally, Brewster pulled in front of Jackson and their cars collided in front of Jackson's house. When the police officers approached Jackson's stopped vehicle with drawn guns a struggle ensued, ultimately resulting in Jackson being subdued and taken to the police station. There were several witnesses to the struggle, and their versions of the incident varied significantly.

On appeal, Jackson argues that his initial stop by Wandell was unlawful because it was not based on any founded suspicion of criminal activity. We believe this to be true--but irrelevant. This is so because, irrespective of the illegality of the initial stop by Wandell, the applicable statute, section 316.1935, Florida Statutes (1983), relating to the offense of fleeing and eluding a police officer, does not require lawfulness of the police action as an element of the offense. The language of the statute is mandatory, and provides:

(1) It is unlawful for the operator of any motor vehicle upon a street or highway, having knowledge that he has been directed to stop such vehicle by a duly authorized police officer, willfully to refuse or fail to stop such vehicle in compliance with such directive or, having stopped in knowing compliance with such a directive, willfully to flee in an attempt to elude such officer....

There was sufficient evidence to support the jury determination that Jackson had knowledge that he had been directed to stop his vehicle by a police officer and willfully refused to do so. Therefore, we affirm the conviction under count one.

In regard to the two remaining counts--battery of an officer and resisting arrest with violence--the defendant sought an instruction at trial on self-defense. The trial court responded by giving an instruction, over defense objection, that was based on Florida Standard Jury Instruction (Criminal) 3.04(b):

Now, an issue in this case is whether David Jackson, Jr. acted in self-defense, that is, that his use of force was justified.

David Jackson, Jr. was justified in using force if he reasonably believed that the use of force was necessary while he was acting in defense of himself against the imminent use of unlawful force by another person.

A person is never justified in the use of any force to resist an arrest. Therefore, you cannot acquit the Defendant on the grounds of self-defense if you find the following facts have been proved: First, the Defendant was being arrested by Officer E. Borges or Officer Brewster.

Two, that the Defendant knew that Officer E. Borges or Officer Brewster were law enforcement officers or that Officer E. Brewster ... Or Officer Guy ... E. Borges or Officer Guy Brewster reasonably appeared under the circumstances to be a law enforcement officer.

As pointed out in the recent case of Allen v. State, 424 So.2d 101 (Fla. 1st DCA), review denied, 436 So.2d 97 (Fla.1983), this standard jury instruction is wrong because it tells a jury that force by an arrestee may never be used, even to rebut excessive force, if he knows, or reasonably should know, that his assailant is a law enforcement officer. This is not the law, and never has been.

The court's observations in Allen were based upon its prior opinion in Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981), review denied, 412 So.2d 470 (Fla.1982), wherein the correlation between self-defense and the use of force by an arresting officer was analyzed:

Sections 776.012 and 776.051, Florida Statutes (1974), were both enacted as a part of the same act. See Laws of Florida, Chapter 74-383. Statutes that are a part of a single act must be read in pari materia. Major v. State, 180 So.2d 335, 337 n. 1 (Fla.1965). The effect of reading these statutes in pari materia is to permit an individual to defend himself against unlawful or excessive force, even when being arrested. This view is consistent with the position taken by other jurisdictions that have been confronted with questions relating to statutes similar to Sections 776.012, 776.051 and 843.01, Florida Statutes. See e.g., People v. Stevenson, 31 N.Y.2d 108, 335 N.Y.S.2d 52, 286 N.E.2d 445 (1972); People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33 (1969); Annot. 77 A.L.R.3d 281.

Chapter 776, Florida Statutes, recognizes principles set forth in the case law of other jurisdictions in that the right of self-defense against the use of excessive force by a police officer is a concept entirely different from resistance to an arrest, lawful or unlawful, by methods of self-help. People v. Curtis, supra, at 74 Cal.Rptr. 713, 714, 450 P.2d 38-39; see also State v. Nunes, 546 S.W.2d 759, 762 (Mo.App.1977). The former concept is grounded on the view that a citizen should...

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    • Florida Supreme Court
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    ... ... in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner PER CURIAM. The Supreme Court Committee ... See State v. Kirer, 120 So.3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985). This instruction was adopted in 2000 [765 So.2d 692] ... ...
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