H.R. v. State

• Citation: 298 So.3d 1217
• Decision Date: 12 February 2020
• Docket Number: No. 3D18-2248,3D18-2248
• Parties: H.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

298 So.3d 1217

H.R., a juvenile, Appellant,

v.The STATE of Florida, Appellee.

No. 3D18-2248

District Court of Appeal of Florida, Third District.

Opinion filed February 12, 2020

Carlos J. Martinez, Public Defender, and Susan Lerner, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.

Before EMAS, C.J., and FERNANDEZ and MILLER, JJ.

PER CURIAM.

INTRODUCTION

H.R., a juvenile, was adjudicated of committing the delinquent acts of activating a fire alarm without reasonable cause and resisting an officer without violence. The only issue raised in this appeal is whether the delinquency finding and adjudication on the resisting without violence charge must be reversed on appeal, where the underlying arrest was unlawful (because the arrest was for a misdemeanor not committed in the presence of the police officer), but H.R. failed to adequately preserve it below by a proper objection.

We affirm, holding that the failure to properly preserve this argument below requires affirmance, and cannot be rescued by the fundamental error exception to the rule of preservation. Our affirmance is without prejudice to the filing of a proper post-adjudicatory petition based on ineffective assistance of counsel.¹

FACTS AND PROCEDURAL BACKGROUND

H.R. was attending high school when the fire alarm was pulled. At the time, H.R. had been walking with a classmate, who later testified that she saw H.R. lift the plastic piece covering the alarm, and then heard the fire alarm go off, but did not actually see H.R. pull the alarm.

Charlie Lopez, the School Resource Officer, viewed the surveillance video of the area, and identified H.R. and the witness, who were near the fire alarm at the time it was pulled. The witness provided a written statement that it was H.R. who pulled the alarm. When Officer Lopez attempted to arrest H.R., H.R. began fighting with the officer, flailing his arms, trying to get away, and telling the officer that he was not going to jail.

Relevant to our purposes, H.R. was charged as a juvenile with two delinquent acts: (1) activating a fire alarm without reasonable cause (a misdemeanor under ( section 806.101, Florida Statutes (2018) ); and (2) resisting an officer without violence (a misdemeanor under section 843.02, Florida Statutes (2018) ).

The case proceeded to an adjudicatory hearing. Officer Lopez admitted during his testimony that he did not personally see H.R. pull the fire alarm and that the surveillance video he observed prior to H.R.'s arrest did not show H.R. (or anyone else) pulling the fire alarm.

After the State rested, H.R.'s counsel moved for judgment of dismissal. As to the resisting arrest, defense counsel argued that, at the time Officer Lopez arrested H.R., he had no legal duty to do so "because there was no probable cause as to who actually pulled the fire alarm." Counsel also argued that there was inadequate time for H.R. to actually resist the arrest. The trial court denied the motion, and the defense then rested without putting on evidence.

The court found H.R. delinquent of the fire alarm and resisting without violence charges.² This appeal followed.

H.R. challenges only the charge of resisting an officer without violence. He asserts, for the first time, that Officer Lopez could arrest H.R. for the fire alarm charge only if it was committed in the presence of Officer Lopez; and because it was not committed in the officer's presence, the officer's arrest of H.R. was unlawful and H.R. could lawfully resist such an arrest without violence. Accordingly, H.R. asserts, the trial court should have granted the motion for judgment of dismissal on the resisting charge.

We review de novo a trial court's denial of a motion for judgment of dismissal. P.N. v. State, 976 So. 2d 90, 91 (Fla. 3d DCA 2008).

ANALYSIS AND DISCUSSION

Generally, a police officer may make a warrantless arrest for a misdemeanor only if it is committed in the officer's presence. § 901.15(1), Fla. Stat. (2018). See Malone v. Howell, 140 Fla. 693, 192 So. 224, 226 (1939) (holding: "An arrest without a warrant for a misdemeanor, to be lawful, can only be made where the offense was committed in the presence of the officer—that is it must have been within the presence or view of the officer in such a manner as to be actually detected by the officer by the use of one of his senses"); Hawxhurst v. State, 159 So. 3d 1012 (Fla. 3d DCA 2015) ; Weaver v. State, 233 So. 3d 501 (Fla. 2d DCA 2017) ; Kirby v. State, 217 So. 2d 619 (Fla. 4th DCA 1969).³

It is plain that, in this case, Officer Lopez was without authority to arrest H.R. for the misdemeanor of falsely activating the fire alarm because, as Officer Lopez testified, he did not see H.R. pull the fire alarm, either in person or upon viewing the surveillance video. Because the officer did not execute a lawful arrest (for activating the fire alarm), H.R. had the right to resist that arrest without offering violence. See Lee v. State, 368 So. 2d 395, 396 (Fla. 3d DCA 1979) (holding: "Under Section 843.02 [resisting arrest without violence] it is apparent that the proof of the legality of an arrest is an essential element to be shown by the prosecution. Here the record is devoid of any proof of the legality of the arrest which appellant resisted without violence. Without such proof, appellee failed to establish one of the essential elements of the crime for which appellant was convicted"); Johnson v. State, 395 So. 2d 594, 596 (Fla. 2d DCA 1981) (holding: "[S]ince the arrest itself was unlawful, a prosecution for resisting arrest without violence under section 843.02 must also fail. Proof of the lawfulness of the arrest is an essential element of that offense").

Had H.R.'s counsel, in moving for a judgment of dismissal, argued that the arrest was unlawful because the underlying misdemeanor had not been committed in the officer's presence, the issue would have been properly preserved and it would have been reversible error for the court to deny that motion.

However, as the State points out, H.R.'s counsel did not make this argument. At no point did counsel argue the application of section 901.15 or contend that the officer could not arrest H.R. for a misdemeanor that was not committed in the officer's presence. Counsel instead argued that "the officer had no legal duty to arrest H.R." and that "there was no probable cause as to who actually pulled the fire alarm."

In Johnson v. State, 478 So. 2d 885 (Fla. 3d DCA 1985), the defendant was charged with and convicted of sexual battery of a child under the age of eleven. On appeal, Johnson contended the trial court erred in denying his motion for judgment of acquittal on the ground that the state failed to establish the victim was eleven years of age or younger, an essential element of the charge. This court held that the issue was not adequately preserved by trial counsel:

Although the defense counsel moved for a judgment of acquittal at trial, he did not do so based upon the ground now urged on appeal. Instead, he employed a general "boilerplate" motion in which he asserted, without explanation or argument, that the state had failed to prove a "prima facie case" of the crime charged in the indictment, which counsel then tracked as to each element, including age. In so doing, counsel failed to comply with Fla. R. Crim. P. 3.380(b) which requires that the motion for judgment of acquittal "must fully set forth the grounds upon which it is based."^{[4 ]} Had counsel complied with the rule and specifically brought the ground now urged to the trial court's attention, the error, if any, might have been cured by allowing the state to re-open its case and supply the missing, technical element of age. Under these circumstances, then, the defendant may not now raise the point urged herein for the first time on appeal.

Id. at 886.

We hold that the argument pressed in the instant appeal—that the arrest was unlawful because the false alarm offense was not committed in the presence of the arresting officer, thus invalidating the resisting charge—was not adequately raised below so as to preserve it for appeal. While no "magic words" are necessary for preservation purposes, a party must nevertheless provide notice of the specific legal basis for the relief sought. See Sunset Harbour Condo. Assoc. v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (holding: "In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved"); Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981) (holding appellate court will not consider issues not presented to the trial judge).

Accordingly, we can only reverse the adjudication of delinquency for the resisting charge if we determine the error in this case was fundamental. See F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) (reiterating that "in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the ... motion below" (quoting Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982) ). "[A]n error is deemed fundamental ‘when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.’ " Id. (quoting J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998) ).

In F.B., 852 So. 2d at 230, the Florida Supreme Court explained that there are two exceptions to the rule that a defendant must preserve a claim of insufficiency of the evidence with a timely challenge below: (1) death penalty cases and (2) "when the evidence is insufficient to show that a crime was committed at all." (Emphasis added).

F.B. engendered some uncertainty over whether this second exception, relevant to the present case, applies solely where the evidence wholly fails to prove any crime occurred or also applies where the...