Dean v. State, 84-1008
| Decision Date | 10 April 1985 |
| Docket Number | No. 84-1008,84-1008 |
| Citation | 466 So.2d 1216,10 Fla. L. Weekly 905 |
| Parties | 10 Fla. L. Weekly 905 Sherman DEAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Penny H. Brill, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal from a sentence entered after appellant's revocation of probation on a prior conviction of burglary. We reverse and remand.
Appellant had been convicted of burglary pursuant to a nolo contendere plea, and had received three years' probation, which was modified to five years' probation when he violated the former probation. Subsequently he was brought before the trial court on a second affidavit of probation violation, which affidavit listed a number of grounds for violation. The lower court found that only one was valid, and it is this violation which is the subject of our present opinion.
The facts show that a police officer observed appellant walking with a small brown bag through what he called a high crime area. The officer said that when he approached appellant, appellant ran, ignoring the officer's command to stop. The officer gave chase, cornered appellant, and arrested him. Appellant's account of the incident differed in that appellant said that he told the officer his name, and that when the officer told him there was a warrant for his arrest, appellant told the officer that he had already been arrested on that warrant. Appellant said that he told the officer that he was on his way to school, and that he had walked away from the officer who arrested him instead of running.
Despite appellant's contention that he had not violated his probation by resisting arrest without violence because the arrest was unlawful, the trial court found that he had violated probation. The trial judge adjudicated him guilty of burglary, and sentenced him to eighteen months' imprisonment with appropriate credit. This appeal follows.
The issue is whether the trial court properly found a violation of probation based upon resisting arrest without violence where the arrest was grounded upon an improper warrant. We conclude that it did not.
In its finding that appellant violated his probation, the trial court found him guilty of allegation number 3 of the violation warrant and affidavit, which speaks of resisting arrest without violence, not obstructing an officer in the performance of some legal duty. Appellant is correct that if his arrest was not lawful, then he could not be found guilty of resisting it. In Marshall v. State, 354 So.2d 107 (Fla. 2d DCA), cert. denied, 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978), for example, the petitioner had run away from an officer who was trying to invalidly arrest her. The Second District Court of Appeal held that in Florida the common law rule remains in effect that one may resist an unlawful arrest so long as he does so without violence. Finding as we do, that there was no basis for a valid arrest here, we hold that appellant...
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