Elliot v. State

• Decision Date: 22 October 1997
• Docket Number: No. 96-2676,96-2676
• Citation: 704 So.2d 606
• Parties: 22 Fla. L. Weekly D2460 Marvin ELLIOT, a/k/a Marvin Eugene Elliot, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 606

704 So.2d 606

22 Fla. L. Weekly D2460

Marvin ELLIOT, a/k/a Marvin Eugene Elliot, Appellant, v. STATE of Florida, Appellee.

No. 96-2676.

District Court of Appeal of Florida,

Fourth District.

Oct. 22, 1997.

Order Clarifying Opinion

Dec. 2, 1997.

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, Judge.

We affirm without discussion the trial court's finding that defendant was competent to stand trial. That leaves only the issue as to the denial of the special jury instruction defining the elements of an arrest. As hereafter discussed, we conclude that it was error under the facts of this case to refuse the instruction.

The factual background is deceptively simple. A city police officer responded to a call that a vagrant was urinating in public. He encountered defendant sitting on a curb, drinking from a bottle of beer. Being aware of no municipal ordinance against consuming beer in public, he asked defendant for identification. Defendant responded with a threat to break the beer bottle over the officer's head and proceeded to wave the bottle around. Without telling the man that he was under arrest, the officer quickly grabbed his wrist to knock the bottle from his hand and threw him to the ground. Defendant attempted to push away from the officer and struggled to free himself from the his grip. The officer was able to place himself on top of the struggling man and stay there until another officer arrived on the scene. The struggle lasted for less than a minute; neither man was injured.

Defendant was charged with aggravated assault on the officer with a deadly weapon--namely, a beer bottle--and resisting arrest without violence. During the jury charge conference, the trial judge announced that he would give the standard jury instruction on resisting arrest without violence as to the latter charge. The trial court also granted defendant's request for a special jury instruction that "Florida law allows a person to resist an illegal arrest without violence." The court denied his request, however, for the following special instruction:

"A valid arrest involves the following elements:

1. A purpose or intention to effect an arrest under a real or pretended authority;

2. An actual or constructive seizure or detention of the person to be arrested by the person having present power to control the person arrested;

3. A communication by the arresting officer to the person whose arrest is sought, of an intention then and there to effect an arrest;

4. An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to detain him."

The court explained that he denied this special instruction because its content was covered by the standard instruction on resisting arrest and the just-approved special instruction allowing an accused to resist an illegal arrest without violence.

The jury convicted defendant of improper exhibition of a weapon and resisting arrest without violence. ¹ On appeal defendant argues error in failing to instruct the jury as to the elements of effecting a lawful arrest. We agree.

In Melton v. State, 75 So.2d 291 (Fla.1954), the question as to what constitutes the effection of a lawful arrest arose in connection with charges of the unlawful possession and concealment of contraband, in this instance "moonshine." The state argued that the moonshine had been lawfully seized incident to a lawful arrest. Defendant argued that no arrest had been effected, and that the officer had merely been serving a search warrant, which was later quashed by the trial court. As the court phrased it, the issue was whether the seizure of the whiskey after simply reading a search warrant to the defendant was within the proper limits of a search incident to an arrest of the defendant. Id. at 294. At that point, the court explained:

"It is uniformly held that an arrest, in the technical and restricted sense of the criminal law, is 'the apprehension or taking into custody of an alleged offender, in order that he may be brought into the proper court to answer for a crime.' When used in this sense, an arrest involves the following elements: (1) A purpose or intention to effect an arrest under a real or pretended authority; (2) An actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) A communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him." [c.o.]

Id. The court then said that the crux of the case was whether an arrest was effected before the seizure of the contraband and concluded that it was not. Because the arrest followed the seizure, the seizure could not be upheld as incident to the arrest.

In Giblin v. City of Coral Gables, 149 So.2d 561 (Fla.1963), the court further examined the third element--communication of an intention to effect an arrest--of the Melton decision. In that civil case, plaintiff had sued for damages for false arrest, contending on a motion for directed verdict that her arrest was illegal. The uncontroverted facts showed that a police officer stopped plaintiff's car for exceeding the speed limit, obtained her driver's license, checked her license tag number, checked her inspection sticker, and proceeded to begin writing a traffic citation. At that point, a conversation ensued between the officer and plaintiff, whereupon her husband, originally a passenger, drove the car away from the officer, who then pursued it after warning that they were under arrest.

In holding that the traffic stop was a legal arrest as a matter of law, the Giblin court said:

"The requirement of communication of the 'intention or purpose ... to effect an arrest' is never construed, so far as we can determine, in a strict or literal sense in a situation such as that at bar. In the most technical treatment of the subject the authorities note that 'there is no required form of words to announce the purpose to arrest,' and upon the theory that 'the law does not require the doing of useless things' it is held that when detention by an officer follows immediately on commission of an overt act of criminality or illegality, the offender must be aware, without formality, of his purpose to arrest. The sufficiency of constructive rather than manual apprehension is, of course, well established.

"In the circumstances of this case there can be no doubt that when the police officer compelled petitioner to stop the vehicle she was driving and undertook to keep her in his custody at least pending his decision on their dispute, there was effected 'an apprehension of such person sufficient to be considered an arrest.' The arrest was, then, as a matter of law effected independent of the officer's admonitions upon petitioner's departure with her husband." [c.o.]

Id. at 562. As the last of the two paragraphs quoted above indicates, the court held that the traffic stop was itself "an apprehension" of the defendant that itself may be sufficient to communicate to the offender that a lawful arrest has been effected. The directed verdict was therefore improper.

Later in State v. Parnell, 221 So.2d 129 (Fla.1969), the court confronted a reversal of a conviction for breaking and entering with intent to commit larceny. As in Melton, the conviction had rested on some stolen property that the police argued was obtained incident to a lawful arrest. When the police discovered the stolen goods at a home occupied by a man, woman, and children, they told the woman that she was under arrest for possessing stolen property. After she became hysterical, referring to her five children in the house, the police allowed her to remain home until the next day when they took her into custody. Defendant argued that the police did not actually make an arrest when the goods were seized, and thus the evidence was improperly admitted. The district court agreed and overturned the conviction. Id. at 130.

The supreme court disagreed and disapproved the district court's decision. The fact that the accused is not actually taken into custody at the time of the arrest, the court held, does not diminish the legal effect of the arrest. In explaining why its decision in Melton did not support the district court, the supreme court said that Melton and Giblin stand for the proposition that:

"an arrest is legally made when there is a purpose or intention to effect an arrest, an actual or constructive seizure or detention is made by a person having present power to control the person arrested, and such purpose or intention is communicated by the arresting officer to, and understood by, the person whose arrest is sought. In Melton, this court said that all of these elements were present and an arrest effected when, after finding a cache of illicit whiskey, the officer informed the defendant of his intention to take her to the county jail and lodge a charge against her for violation of the liquor laws. Melton v. State, supra, 75 So.2d at page 294. In Giblin, it was held that the appellant was legally arrested within the city limits of Coral Gables when the car she was...