Kirby v. State, 1940
| Decision Date | 14 January 1969 |
| Docket Number | No. 1940,1940 |
| Parties | Henry Lee KIRBY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack A. Nants, Orlando, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and J. Terrell Williams, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant, Henry Lee Kirby, was driving his car en route to the home of Helen Stokes who was a passenger. Following a comment concerning the manner in which he was driving, Kirby stopped the car approximately one block from Miss Stokes' home and after announcing that she could drive the remainder of the way, Kirby got out of the car and proceeded on foot. Miss Stokes had no driver's license and apparently very little driving experience but she did get the car home after running through a stop sign on an intersecting street. As fate would have it, Deputy Sheriff Bowling, patrolling the area at the time, witnessed the traffic violation and followed Miss Stokes to where she parked the car in her yard. Preparing to issue a traffic citation to Miss Stokes the deputy learned that she did not have a driver's license and that Kirby owned the car and had given her permission to operate it. At this point Kirby appeared on the scene, identified himself as the owner of the car, stated that he had given Miss Stokes permission to drive it, and made inquiry as to what was going on. The deputy then asked Kirby if at the time he gave Miss Stokes permission to operate the car he was aware that she did not have a driver's license to which he responded in the affirmative.
At this point the deputy sheriff, Without a warrant, placed Kirby under arrest for allowing an unauthorized person to drive his car. Kirby did not take kindly to the idea and made it clear in no uncertain terms by both word and deed that he did not intend to go anywhere. Deputy Bowling then radioed for assistance and ultimately Deputy Gulbrand arrived in a patrol car, whereupon he also announced to Kirby that he was under arrest. Gulbrand's attempt to take Kirby into custody was resisted in the same forceful manner as Bowling's efforts had been. Ultimately, with the aid of other officers, Kirby was taken into custody. He was charged with two counts of obstructing an officer in the execution of his legal duty with violence, one as to Deputy Bowling and the other as to Deputy Gulbrand, and he was likewise charged in two counts of assault and battery, one upon Deputy Bowling and the other upon Deputy Gulbrand. In a jury trial he was found guilty of these four counts and from the judgment entered thereon brings this appeal.
The primary question we consider on this appeal is whether the arrest by Deputy Bowling was lawful. If it was not, appellant is entitled to be discharged on all counts. If, however, the arrest by Bowling was lawful, we have to consider a corollary question of whether the counts involving Deputy Gulbrand were defective.
In order for Kirby to be found guilty of the charge brought under F.S.1967, Section 843.01, F.S.A., of obstructing an officer in the execution of his legal duty with violence, it would be necessary for the state to prove that Bowling was attempting to make an arrest which he had lawful authority to make without a warrant. Licata v. State, 1945, 156 Fla. 692, 24 So.2d 98. Allowing an unauthorized person to operate a motor vehicle upon a public street or highway is made a misdemeanor by F.S.1967, Section 322.36, F.S.A. But without a warrant, Deputy Bowling could lawfully arrest Kirby for...
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Paulson v. State of Florida, Civ. No. 73-126.
...squared with the statute's requirement that misdemeanor arrests be made, if not immediately, then "in fresh pursuit." Cf. Kirby v. State, 217 So.2d 619 (Fla.App.1969). Had the trial court credited any of the factual allegations petitioner now advances, therefore, it would have been compelle......
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...an arrest which he had lawful authority to make without a warrant. Licata v. State, 156 Fla. 692, 24 So.2d 98 (1945); Kirby v. State, 217 So.2d 619 (4th DCA Fla.1969). See Jones v. State, 293 So.2d 116 (3d DCA Fla.1974); Smith v. State, 292 So.2d 69 (3d DCA Fla.1974); Rosenberg v. State, 26......
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...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 whic......
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State v. Steffani
...A person commanded to aid a peace officer shall have the same authority to arrest as that peace officer..."); Kirby v. State, 217 So.2d 619, 621 (Fla. 4th DCA 1969) ("Gulbrand, having been summoned under F. S. 1967, Section 901.18, F.S.A., had the right to do whatever the summoning officer ......
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