Marshall v. State, 77-708
| Decision Date | 13 January 1978 |
| Docket Number | No. 77-708,77-708 |
| Citation | 354 So.2d 107 |
| Parties | John Harvin MARSHALL and Eddie Ruth Marshall, Petitioners, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Enrique Escarraz, III, St. Petersburg, for petitioners.
E. J. Salcines, Jr., State Atty., and Thomas P. Fox, Asst. State Atty., Tampa, for respondent.
Petitioner Eddie Ruth Marshall was charged with driving a motor vehicle without a driver's license and resisting arrest without violence. Petitioner John Harvin Marshall was charged with resisting arrest without violence, interfering with a police officer, and assault on a police officer. Both petitioners were tried by a jury in a joint trial in county court.
At the close of the state's case, the court directed a verdict of acquittal on the charge of resisting arrest without violence against Mr. Marshall. The jury found the petitioners guilty as charged on the remaining counts. On appeal to the circuit court the judgments of guilt were affirmed. The petitioners seek review of the circuit court order by petition for certiorari.
Our standard for review on common law certiorari is whether there was a departure from the essential requirements of law. Clermont Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla. 2d DCA 1977). Measured by this criterion, the convictions of Eddie Ruth Marshall must be quashed, but the convictions of John Harvin Marshall need not be disturbed.
Section 322.03, Florida Statutes (1975) specifies that no person shall drive a motor vehicle upon a highway in this state without a valid license as an operator or chauffeur. While there is nothing in this record to indicate that Eddie Ruth Marshall had a driver's license, there was also no evidence whatsoever to prove that she ever drove a motor vehicle. The arresting officer observed her getting into a car and sitting down in the driver's seat. He said nothing about the car having moved or the ignition having been turned on. Unlike Section 316.028, Florida Statutes (1975), to be in actual physical control of a motor vehicle is not enough to convict for driving without a license. Surely, the conviction of a crime without proof of an essential element must constitute a departure from the essential requirements of law.
Since the arresting officer had no warrant and there was no evidence that Eddie Ruth Marshall had committed even a misdemeanor in his presence, the arrest of Ms. Marshall was...
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K.Y.E. v. State, 89-2851
...DCA 1980); Morley v. State, 362 So.2d 1013 (Fla. 1st DCA 1978); Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978); Marshall v. State, 354 So.2d 107 (Fla. 2d DCA 1978). Accordingly, we REVERSE the conviction for breach of the peace and the conviction for obstructing or opposing an officer ......
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Ellison v. State
...of his conduct following the arrest. Accord, People v. Carroll, 133 Ill.App.2d 78, 272 N.E.2d 822 (1971); Contra, Marshall v. State, Fla.App., 354 So.2d 107 (1978), Cert. denied, 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 Although either of the above holdings is sufficient to warrant rejec......
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Lee v. State, 77-720
...also note that appellant has a common law right to resist an unlawful arrest without the use of violence. See, e. g., Marshall v. State, 354 So.2d 107 (Fla.2d DCA 1978); and Adlington v. State, 350 So.2d 1148 (Fla.3d DCA For the reasons set forth above, appellant's conviction and sentence f......
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Johnson v. State, 80-1882
...an essential element of that offense. Lee v. State, 368 So.2d 395 (Fla. 3d DCA), cert. denied, 378 So.2d 349 (Fla.1979); 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 The county court's rulings in the instant case were clearly corr......