Polite v. State

Decision Date14 June 2006
Docket NumberNo. 3D03-2819.,3D03-2819.
Citation933 So.2d 587
PartiesGary Lamar POLITE, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bennett H. Brummer, Public Defender, and Carlos F. Gonzalez, Special Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.

Before GERSTEN and WELLS, JJ., and SCHWARTZ, Senior Judge.

ON MOTION FOR REHEARING

SCHWARTZ, Senior Judge.

We grant the state's motion for rehearing, set aside the opinion of April 13, 2005,1 and substitute the following.

The defendant appeals from a conviction and sentence for resisting an officer with violence under section 843.01, Florida Statutes (2002), which makes it a felony to "knowingly and willfully resist[], obstruct[], or oppose[] any officer . . . by offering or doing violence to the person of such officer." The primary issue at the trial, presented by disputed evidence on the question,2 was whether, in forcibly resisting arrest by the victim, Officer Munoz, who was in plain clothes and undercover, the defendant actually knew or should have known that he was indeed a police officer. During both the closing and rebuttal portions of the prosecutor's final argument the prosecutor argued that it was not necessary for the state to establish that fact.3 The court overruled the defendant's objections to this argument and a motion for mistrial and later denied a requested instruction that the term "knowingly" in the definition of the offense included the requirement

that he must knowingly resist an officer which includes that he must have known that . . . Officer Munoz was in fact a police officer. . . .

On appeal, Polite again argues that the trial court erred in overruling his objections to the state's arguments and in refusing to give an instruction to the effect that the state must prove that the defendant knew that Munoz was an officer. We disagree upon the holding that knowledge of the victim's status is not an element of the offense of resisting an officer with violence. Therefore, neither the state's arguments nor the trial judge's rulings were incorrect.

In resolving the present issue of the proper interpretation of section 843.01, the starting point, as always, is the statute itself. It provides:

Whoever knowingly and willfully resists, obstructs, or opposes any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); . . . by offering or doing violence to the person of such officer . . . is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

And, as was said in State v. Giorgetti, 868 So.2d 512, 515 (Fla.2004):

[T]he Legislature generally has broad authority to determine any requirement for intent or knowledge in the definition of a crime. To determine whether the Legislature included a knowledge requirement in any given statute, we first look to the statute's plain language.

(Citation omitted). Of course, the word "knowingly" appears in the statute itself. The real issue, however, is what that word refers to. We conclude that the "plain language" of section 843.01 shows that the legislature did not include knowledge of the victim's status as an element of the offense.4 This is so because the adverbial terms "knowingly and willfully" modify the verbs "resists, obstructs or opposes" rather than the entire phrase. In contrast, the defendant's position, which is essentially that "knowingly" applies to the term "officer," would require an impermissible rewriting of the statute by inserting the phrase "a person known by him to be" to modify the term "officer," see Reynolds v. State, 842 So.2d 46 (Fla.2002), or the phrase "with the intent of" before the phrase "offering or doing violence to the person of such officer." See Frey v. State, 708 So.2d 918, 920 n. 2 (Fla.1998); see also Exposito v. State, 891 So.2d 525, 528 (Fla. 2004)("[T]his Court must give the statutory language its plain and ordinary meaning, and is not at liberty to add words . . . that were not placed there by the Legislature.")(internal quotation marks and citation omitted).

Our holding is made obvious by the legal fact that resisting an officer with violence is not a specific intent crime. In Frey, 708 So.2d at 920, the supreme court held that the statutory language requires "no heightened or particularized intent," and that resisting an officer with violence is therefore a general intent offense.5 See also Williams v. State, 250 So.2d 11 (Fla. 3d DCA 1971)(resisting an officer with violence). As such, the defendant must "knowingly" simply intend to commit the proscribed act, that is, resisting, obstructing or opposing a person who is an officer. See State v. Franchi, 746 So.2d 1126, 1128 (Fla. 4th DCA 1999)("The plain language of the [aiding escape] statute does not require a heightened or particularized intent beyond the mere intent to commit the act itself or the intent to cause the natural and necessary consequences of the act, i.e., to `knowingly' act."), review denied, 767 So.2d 456 (Fla.2000). See also Frey, 708 So.2d at 922 n. 4 (Anstead, J., concurring in part and dissenting in part)("The term `knowingly' by itself does not create a specific intent crime. United States v. Manganellis, 864 F.2d 528, 536 (7th Cir. 1988)."); accord Carrada v. State, 919 So.2d 592, 595 n. 2 (Fla. 3d DCA 2006)(leaving the scene of a crash resulting in personal injury is not a specific intent crime even though statute requires that offense be committed "willfully")(citing Frey (Anstead, J., concurring in part and dissenting in part)); cf. Thompson v. State, 695 So.2d 691 (Fla.1997)(holding that knowledge is an element of attempted murder of a law enforcement officer is supported by fact that offense requires specific intent).6 But see A.F. v. State, 905 So.2d 1010, 1012 (Fla. 5th DCA 2005)(respondent accused of resisting an officer with violence "must have reason to know that the `victim' is an officer").

Furthermore, our holding is in keeping with the underlying purposes of the statute in "preventing the hindrance of the government and [in the] protection of individual officers." Wallace v. State, 724 So.2d 1176, 1179 & 1179 n. 6 (Fla.1998)(noting that (1) the Court in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), gave weight to both purposes in holding that knowledge is not an element of the offense of assaulting, resisting or impeding a federal officer; and (2) that the offense is the "federal statutory equivalent" to resisting an officer with violence). As the present case shows, the "contrary conclusion would give insufficient protection to the [police officer] enforcing an unpopular law, and none to the [officer] acting under cover." Feola, 420 U.S. at 684, 95 S.Ct. 1255 (emphasis added).7

It is significant also that when the legislature determines that knowledge of an officer's status is an element of an offense, it has expressly included such a condition. The point is clearly made in T.S. v. State, 808 So.2d 1276, 1277 (Fla. 4th DCA 2002). In considering the similar offense of assaulting a school board employee, the court stated:

Appellant was charged under section 231.06, Florida Statutes (1995), a statute which was repealed on October 1, 1996, and replaced with section 784.081, Florida Statutes (2000).8 Both statutes address assaults on school board employees. The new statute requires that in order to be convicted the person charged with the violation must know that the victim was a school board employee. The petition did not refer to the new statute and did not allege that appellant knew the victim was a school board employee.

* * *

The state does concede that the petition does not allege that appellant knew the victim was a school board employee, an element of the new statute. We therefore remand for the offense to be reclassified as simple assault.

(Emphasis added). See also § 316.1935, Fla. Stat. (2005)(fleeing or eluding officer);9 § 812.015(6), Fla. Stat. (2005)(resisting officer's recovery of merchant's property).10 Similarly, many statutes in other jurisdictions expressly provide that the defendant must have knowledge, reason to know or a reasonable belief that the victim is an officer.11 On the other hand when, like section 843.01, that language is not present, several courts have held that knowledge of the victim's status is not an element. See Feola; Jackson v. Delaware, 734 A.2d 641 (Del.1999)(unpublished); Powell v. Mississippi, 806 So.2d 1069 (Miss.2001); Montana v. Gopher, 194 Mont. 227, 633 P.2d 1195 (1981); Nebraska v. Daniels, 220 Neb. 480, 370 N.W.2d 179 (1985); see also Me.Rev.Stat. Ann. Tit. 17-A, § 751-A(2) (2005)("It is a defense to prosecution under this section that the person reasonably believed that the person attempting to effect the arrest or detention was not a law enforcement officer"). We (of course) agree with these decisions. But see, e.g., California v. Woods, No. D040160, 2003 WL 21783835 (Cal.Ct.App. Aug. 4, 2003)(unpublished opinion); Phillips v. Georgia, 267 Ga.App. 733, 601 S.E.2d 147 (2004); Stack v. Indiana, 534 N.E.2d 253, 255 (Ind.Ct.App.1989).

It is true that the crime of resisting an officer without violence under section 843.0212 does require proof of the defendant's knowledge of the officer's status although that statute is likewise silent as to such an element. Cooper v. State, 742 So.2d 855 (Fla. 1st DCA 1999); see O'Brien v. State, 771 So.2d 563 (Fla. 4th DCA 2000), review denied, 791 So.2d 1100 (Fla.2001). But, the statutes are otherwise decisively different.13 As to the "without violence" offense, such a requirement must be imposed because the forbidden conduct would not otherwise be necessarily improper. See D.T.B. v. State, 892 So.2d 522, 524 (Fla. 3d DCA 2004); Cooper, 742 So.2d at 855; Elliot v. State, 704 So.2d 606 (Fla. 4th DCA 1997); see also Chicone v. State, 684 So.2d 736 (Fla.1996...

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3 cases
  • Polite v. State
    • United States
    • Florida Supreme Court
    • September 27, 2007
    ...Chief, and Lucretia A. Pitts, Assistant Attorneys General, Miami, FL, for Respondent. PARIENTE, J. We have for review Polite v. State, 933 So.2d 587 (Fla. 3d DCA 2006), in which the Third District Court of Appeal certified conflict with the Fifth District Court of Appeal's decision in A.F. ......
  • Newman v. State
    • United States
    • United States State Supreme Court of Delaware
    • January 8, 2008
    ...appeal, the State's answering brief relies extensively on the opinion of the Florida Third District Court of Appeal in Polite v. Florida ("Polite I"),13 which held that knowledge of the victim's status is not an element of the offense of resisting an officer with violence. During the course......
  • Polite v. State
    • United States
    • Florida Supreme Court
    • January 25, 2007
1 books & journal articles
  • Miscellaneous
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • April 30, 2021
    ...that criminal statutes say with precision what is prohibited. Polite v. State, 973 So. 2d 1107 (Fla. 2008) reversing Polite v. State , 933 So. 2d 587 (Fla. 3d DCA 2006) approving A.F. v. State , 905 So. 2d 1010 (Fla. 5th DCA 2005) All decisions of the Supreme Court that disagree with a stat......

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