Bradford v. State, 89-1155

• Decision Date: 04 September 1990
• Docket Number: No. 89-1155,89-1155
• Citation: 567 So.2d 911
• Court: Florida District Court of Appeals
• Parties: 15 Fla. L. Weekly D2242 Charles Wesley BRADFORD, Appellant, v. STATE of Florida, Appellee.

Page 911

567 So.2d 911

15 Fla. L. Weekly D2242

Charles Wesley BRADFORD, Appellant, v. STATE of Florida, Appellee.

No. 89-1155.

District Court of Appeal of Florida First District.

Sept. 4, 1990.

Rehearing Denied Oct. 31, 1990.

Barbara M. Linthicum, Public Defender, Nancy L. Showalter, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., Charlie McCoy, Asst. Atty. Gen., for appellee.

WENTWORTH, Judge.

Appellant seeks review of a judgment of conviction and sentence by which he was convicted of battery on a police officer, resisting an officer without violence, and possession of cocaine and possession of paraphernalia, and was sentenced as an habitual offender to a total of 20 years imprisonment. We affirm, finding no reversible error in appellant's contentions that the court should have granted his motion to suppress, that the evidence was insufficient to sustain the conviction for resisting arrest without violence, that section 775.084, Florida Statutes, is impermissibly inequitable, irrational, and vague, that the court erred in sentencing appellant as an habitual offender without making the requisite findings and providing the requisite notice, and that it improperly departed from the sentencing guidelines without written reasons. We affirm for reasons detailed below, and because the constitutional issues are controlled by this court's opinion in Barber v. State, 564 So.2d 1169 (Fla. 1st DCA 1990).

The incident in question occurred at approximately 4:00 in the morning. An officer with the narcotics division of the Escambia County sheriff's department testified that he was patrolling in his car on the night in question in a part of town which had been plagued by "numerous" recent burglaries and which consisted largely of commercial buildings. He testified that he was driving through the main road in this section of town when he noticed appellant walking in the opposite direction along the sidewalk. He admitted that he observed no illegal activity by appellant and did not have any reason to believe appellant was about to or had committed a crime. The officer testified that when he saw appellant he decided to turn his car around and follow him because he was concerned about what appellant was doing in that area of town at that time of night.

The officer stopped his car and beckoned to appellant to come over to the police car. He testified that appellant hesitated at first and then complied. The officer stated that he did not recognize appellant and requested identification. Appellant produced a driver's license.

The officer summarized what happened next as follows: "At that point he was wearing a jacket which was baggy, and at that point for my own personal safety reasons I conducted just a quick pat-down search for any type of weapons." He felt what he thought was a matchbox in appellant's pocket but admitted that he did not think the object was a weapon of any kind. He testified that matchboxes of a certain kind are often used to carry crack cocaine, so he inquired of appellant as to what was in his pocket. The officer then reached into appellant's pocket to remove the item, but appellant hit him in the chest with enough force to cause him to stumble backwards. At one point he had grasped the item long enough to identify it as a "red-top matchbox," the particular kind he said was preferred by drug carriers.

Appellant turned and ran down the street. The officer ran to his vehicle to radio the police station and then chased appellant approximately 50 yards into the parking lot of a restaurant. The officer testified that appellant then "turned on me, and he grabbed me and tried to throw me to the ground and a fight ensued." A second officer arrived at that time to find appellant face down on the pavement and held in place by the first officer. The second officer helped place appellant under arrest and put him in the back seat of the patrol car of a third officer.

According to the officer who transported appellant to the hospital, once they arrived at the hospital appellant had to remove his jacket to obtain medical treatment. As appellant removed his jacket he held closed the front left pocket of his jacket. Once he had removed the jacket, the officer looked into the pocket and found a crack pipe with cocaine residue on it.

Appellant was charged with battery on a law enforcement officer, resisting arrest with violence, possession of paraphernalia, and constructive possession of cocaine. Appellant filed a pretrial motion to suppress the paraphernalia and cocaine, and a motion to dismiss the charges of battery on a law enforcement officer and resisting arrest with violence. Both motions were denied, the court finding that the initial exchange between appellant and the police officer was a consensual encounter involving a permissible brief detainment. The court stated: "Assuming arguendo ... that the pat-down frisk was not one based on reasonable suspicion, that was attenuated by the defendant's own subsequent conduct by turning and battering the police officer."

Appellant was subsequently convicted after a jury trial and a sentencing guidelines scoresheet was prepared showing a recommended sentence of 4 1/2 to 5 1/2 years' imprisonment. The court noted that appellant had been convicted of two or more felonies in this state, that the felony for which appellant was to be sentenced was committed within five years of the date of conviction of the last prior felony, that appellant had not received a pardon for any offense, and that no conviction had been set aside in any postconviction proceeding. The court determined "that it's necessary in this instance for the protection of the public to sentence the defendant to the extended term as provided in this section as an habitual felony offender."

On the suppression issue it is clear that appellant was initially called over by the officer and complied, supporting the trial court's finding that the initial encounter between appellant and the officer was consensual. However, the officer did not have reasonable suspicion to support his subsequent pat-down search of appellant based only on appellant's wearing a loose jacket. He also improperly reached into appellant's jacket pocket when he felt a hard rectangular object which he did not think was a weapon. See Warren v. State, 547 So.2d 324 (Fla. 5th DCA 1989). A motion to suppress directed solely to the matchbox might therefore have been granted.

However, because the physical evidence admitted against appellant consisted of the crack pipe with cocaine residue which was found after appellant was chased, arrested, and taken to the hospital, we must determine whether the officer's actions in chasing appellant and arresting him for some offense other than possession of the matchbox were proper. If appellant was properly arrested, then the search at the hospital was a lawful search incident to arrest, and the motion to suppress directed to the crack pipe and residue was properly denied.

In determining whether appellant was lawfully arrested, a consideration of appellant's action in shoving the police officer during the attempted, improper initial search is necessary. The jury convicted appellant of battery on a law enforcement officer under section 784.07(2)(b). A person has committed a battery under section 784.03(1)(a) if he "[a]ctually and intentionally touches or strikes another person against the will of the other." Section 784.07(2)(b) reclassifies such a battery, when it has been committed on a law enforcement officer while he "is engaged in the lawful performance of his duties," as a third degree felony. Although we conclude that the officer was not "engaged in the lawful performance of his duties" when he initially searched appellant, it is clear from the record that appellant intentionally struck the officer in violation of section 784.03(1)(a) during that encounter. Therefore, although the conviction for battery on a law enforcement officer is also clearly affirmable based on appellant's battery on the officer after the subsequent chase, there was nevertheless prima facie evidence of a simple battery under 784.03(1)(a) on the officer...