HH v. State, 4D00-1077.

• Decision Date: 20 December 2000
• Docket Number: No. 4D00-1077.,4D00-1077.
• Citation: 775 So.2d 397
• Parties: H.H., a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

775 So.2d 397

H.H., a child, Appellant, v. STATE of Florida, Appellee.

No. 4D00-1077.

District Court of Appeal of Florida, Fourth District.

December 20, 2000.

Rehearing Denied January 11, 2001.

Richard L. Jorandby, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.

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

SHAHOOD, J.

We reverse appellant's adjudication for resisting an officer without violence because the initial stop of appellant was not lawful.

The elements of resisting an officer without violence require that (1) the officer be engaged in the lawful execution of a legal duty and (2) the defendant's action constitute obstruction or resistance of that lawful duty. See Fripp v. State, 766 So.2d 252 (Fla. 4th DCA 2000)

; § 843.02, Fla.Stat. (1999). An individual may be guilty of unlawfully obstructing an officer if he flees while knowing the officer's intent to detain him and the officer is justified in making a stop pursuant to the Stop and Frisk statute. See M.C. v. State, 450 So.2d 336 (Fla. 5th DCA 1984); see also Harris v. State, 647 So.2d 206, 208 (Fla. 1st DCA 1994)(the crime of resisting an officer without violence cannot take place if either the officer "lacked an articulable well founded suspicion of criminal activity to justify the attempt to detain [the appellant] or if [the appellant] had no reason to believe that he was being detained.")

In this case, there was an adjudicatory hearing, after which the trial court made the following findings:

I find that the Officer Tuminelli was ... out and on patrol on ... September 7, 1999. That during the time he was called out, he was called out to investigate a crime that had occurred that he was at the time in his lawful performance of his duty.... He spotted the person on trial here, ... at the time near or at the scene of where the investigation was being conducted. He noticed-he had reasonable suspicion at that time to believe that the investigation involved a stolen bicycle. Mr. Howard was on a bicycle at the time, so therefore, he had reason to believe that this was related to the crime at 1:00 in the morning in Stuart, ... there was no other testimony about any other bicycles being around there, except for this one.

Furthermore, I find from the facts that under the Stop and Frisk Statute, 901.151 that ... Officer Tuminelli encountered Mr. Howard under circumstances that reasonably indicated that the person had committed or is committing or about to commit a violation of criminal laws. He had a duty and an obligation to the citizens to investigate it and to find out what was going on.

* * *

By walking away, he was opposing or obstructing the duties of the officer who was in lawful performance of doing a ... stop and frisk pursuant to 901.151, the Stop and Frisk Statute.

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