Canney v. State

• Decision Date: 07 September 1973
• Docket Number: No. 70-724,70-724
• Citation: 298 So.2d 495
• Court: Florida District Court of Appeals
• Parties: Robert Benjamin CANNEY, Appellant, v. STATE of Florida, Appellee.

Page 495

298 So.2d 495

Robert Benjamin CANNEY, Appellant, v. STATE of Florida, Appellee.

No. 70-724.

District Court of Appeal of Florida, Second District.

Sept. 7, 1973.

Rehearing Denied Aug. 16, 1974.

Benjamin E. Smith, of Smith & Scheuermann, New Orleans, La.; Maynard F. Swanson, Jr., Clearwater, and Gardner W. Beckett, Jr., St. Petersburg, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.

HOBSON, Judge.

Appellant seeks review of a judgment and sentence entered against him following a jury verdict of guilty as charged rendered September 22, 1970, in response to a Bill of Information charging appellant with 'Resisting an Officer with Violence.'

On April 18, 1970 an anti-Vietnam war rally was held at Straub Park in St. Petersburg, Florida. A podium was set up with a public address system and several speeches, in addition to appellant's, were made during the course of the rally. During his speech before the gathering, appellant was quoted to have said '. . . bring the Goddamned war home' and to have used the phrase 'the Goddamn pigs.'

Appellant finished his speech and sat down on the grass. Thereupon Officer Spivey approached him, tapped appellant on his right shoulder and said, 'You are under arrest for disorderly conduct, profane language.' Appellant then jumped up and yelled, 'Don't let them do this to me,' and 'You are not going to arrest me.' The crowd then began throwing bottles and sticks at the officers.

During the ensuing scuffle between Officer Spivey and appellant, appellant verbally abused the officers by directing obscenities towards them and successfully punched Officer Spivey on the right side of his face, thereby cutting the inside of his mouth. Appellant was finally placed in the paddy wagon and taken to the police station.

Appellant contends that the state is required to prove a lawful arrest as a necessary element in its prosecution for violation of F.S. § 843.01, F.S.A., Resisting Officer with Violence to his Person. Therefore, appellant submits that St. Petersburg, Fla., Code Ch. 25, § 42, as amended, Ordinance No. 213-E (1970) entitled Obscene Language ¹ is unconstitutional and any arrest thereunder was unlawful, thereby vitiating appellant's subsequent conviction for Resisting Arrest which he now appeals. We disagree.

Irrespective of the constitutionality of the city ordinance which appellant now collaterally attacks, the lawfulness of the arrest '. . . must stand or fall upon the facts and circumstances Then existing. ' Carter v. State, Fla.App.1967, 199 So.2d 324, at p. 328. The legality of an arrest does not depend upon the conviction or acquittal of the accused. See Rinehart v. State, Fla.App.1959, 114 So.2d 487, cert. dismissed Fla., 121 So.2d 654, cert. den. 365 U.S. 849, 81 S.Ct. 812, 5 L.Ed.2d 813 (1961).

'In considering the legality of an arrest by a municipal officer for a breach of the peace committed in his presence, the determining factor is not whether the charged person is actually guilty. The question to be determined is whether or not the officer had substantial reason to believe the plaintiff was committing a misdemeanor. If substantial reason exists the courts cannot second guess the officer in the performance of his duty.' City of Miami v. Albro, Fla.App.1960, 120 So.2d 23, at p. 26.

Certainly after hearing appellant's speech and with the knowledge that a city ordinance, which had not been declared invalid existed which intended to protect the public at large from having to hear such offensive language, Officer Spivey had sufficient reason to arrest appellant in full compliance with § 901.15, F.S.A. 2 3 4

The judgment appealed is therefore affirmed.

Affirmed.

PIERCE, J. (Ret.), concurs.

MANN, C. J., dissents with opinion.

MANN, Chief Judge (dissenting).

If in Stalin's time, in the St. Petersburg which had by then become Leningrad (saints having fallen from grace in the Soviet Union), a citizen had been arrested for cursing the 'goddam war' and calling the visibly present police 'goddam pigs,' I could understand it. But Canney was arrested at a peace rally in St. Petersburg, Florida, and I cannot understand it.

The legality of Canney's arrest for profanity is essential to affirmance of this conviction. The trial judge might have been misled in this regard, but we are not. In the time-honored tradition of the trial bar, the law was researched after the appeal was filed.

In fact, the prosecutor responded to defense counsel's suggestion that Canney could not be guilty of resisting arrest with violence unless the arrest resisted were lawful by saying, 'If you want to rule as a matter of law that Goddamn Pig isn't profane and 'Let's bring the goddamn war home' isn't profane, let's direct a verdict of not guilty right now.' Later, defense counsel argued that this is a First Amendment case to which the prosecutor replied, 'That is exactly what we are not dealing with, Judge. We are not dealing with a First Amendment case. We are dealing with resisting arrest with violence. If you want to deal with the First Amendment, you go to the Federal Court. We are not concerned with that here.'

Our oath embraces two Constitutions. We must consider constitutional claims in state courts, and it is a reproach to the state judiciary that they are commonly brought in federal courts where concurrent jurisdiction exists. It is also a bother to the Federal judiciary. Too, it is utterly impossible to try the prosecution's case in the state court and the defense's case in federal court, unless, as must inevitably follow in this case, state courts fail to act The statute ¹ requires that the state prove that Canney resisted a Lawful arrest, and that necessarily involves the question whether, in a political context, where there is no disturbance whatever except that created by these two overzealous policemen, and where Canney had finished his vulgar and repulsive speech and sat quietly down before he was arrested, an American citizen can be arrested for invoking divine vengeance upon a war he doesn't like and a constabulary he regards as repressive.

on the appellant's obviously valid First Amendment claim.

Our Florida Supreme Court has expressly ruled that the validity of the arrest must be shown, in cases the trial judge didn't know about, but we do. ² In Licata v. State, the defendant was charged with wilfully resisting and obstructing a deputy sheriff in the execution of legal process. The charge was insufficiently proved because there was no showing that the officer was executing any legal process. In dictum, the Supreme Court went on to say that if the defendant had been charged with resisting or obstructing the officer in the performance of a legal duty, 'it would have been necessary for the State to prove that Myers was attempting to make an arrest which he had lawful authority to make . . .' 156 Fla. at 694, 24 So.2d at 98. Jackson v. State is an even stronger case. Ida Bell Jackson was convicted of obstructing a deputy sheriff in the exercise of legal process, and won reversal on appeal because the warrant under which the deputy acted did not particularly describe the place to be searched.

We are not involved here with the question whether the Legislature can make it criminal to resist with violence or otherwise an unlawful arrest. It would seem to me more civilized if those arrested went along quietly and left to prompt determination by the courts the legality of their detention, but the Legislature has specifically protected those arrested unlawfully on misdemeanor charges against the ballooning of the charge to felonious status upon the arrestee's display of indignation amounting to physical resistance. We are obligated to construe the statute as written, in the light of our Supreme Court's interpretation, regardless what we think it should say.

More recently, our sister court in the Fourth District has reversed a conviction for aggravated assault stemming from an arrest for violation of an ordinance later held unconstitutional. Russo v. State, Fla.App. 4th 1972, 270 So.2d 428. The same court has recognized in two cases that the statute means precisely what it says and what our Supreme Court says it says, namely, that the State must prove that the arrest was lawful. Kirby v. State, Fla.App. 4th 1969, 217 So.2d 619; Rosenburg v. State, Fla.App. 4th 1972, 264 So.2d 68. The question in each of those cases was whether the misdemeanor for which the original arrest was made was committed in the officer's presence, and it was held that the arrests were lawful. Following Licata, the Fourth District recognized the lawfulness of arrest as a necessary element of the State's case. I have no quarrel with State v. Briggs, the Missouri case cited in the majority opinion. Briggs was convicted of assaulting an officer, an offense of which Canney may well be guilty, but it is not the offense with which he was charged. Canney was charged with resisting a Lawful arrest with violence, and proof of the unlawfulness of the arrest is required by the plain language of the statute and the plain mandate of the Supreme Court. ³

The trial court did not fully consider Canney's claim based on discriminatory enforcement. ⁴ 'Goddam' is a word taken into the vocabulary, and infests our literature. ⁵ It is a bi-partisan epithet: President Roosevelt applied it to a broken voting machine ⁶ and former Attorney General John Mitchell was quoted by the Associated Press on June 15, 1972, as using it. It transcends terrestrial boundaries: an astronaut on the moon used it, and I heard no clamor for his prosecution, though I recognize a delicate venue problem. The law seems to be that you can't use the phrase in St. Petersburg if it offends the police.

At the core of this case is the question--rarely considered--whether profanity is constitutionally punishable when uttered in a political context without threat to the public...