Palmer v. State

• Decision Date: 24 April 2013
• Docket Number: No. 4D12–3783.,4D12–3783.
• Parties: James PALMER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

112 So.3d 606

James PALMER, Appellant,

v.STATE of Florida, Appellee.

No. 4D12–3783.

District Court of Appeal of Florida,

Fourth District.

April 24, 2013.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for appellee.

MAY, C.J.

The defendant appeals the revocation of his probation for resisting an officer without violence. The defendant argues the trial court erred in revoking his probation because the officers lacked reasonable suspicion to detain him, which led to the resisting without violence charge. We agree and reverse.

The State filed a violation of probation, and alleged the defendant had committed a trespass and resisted arrest without violence. At the probation revocation hearing, the arresting officer testified that he and another officer observed the defendant standing next to two buildings that had “no trespassing” signs posted. The officer did not recognize the defendant. The officers exited their vehicle, announced their presence, and ordered the defendant to stop. The defendant fled.

The trial court dismissed the trespass violation, but revoked the defendant's probation for resisting arrest without violence. The court sentenced the defendant to two concurrent four year terms of imprisonment. The defendant now appeals.

On appeal, the defendant argues that the trial court erred in revoking his probation because the officers lacked reasonable suspicion to detain him; and therefore he was free to ignore the officer's order to stop. To support a conviction for resisting arrest without violence, “the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant's action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State, 24 So.3d 1181, 1185–86 (Fla.2009). An officer's command to stop is a lawful execution of a legal duty if there is reasonable suspicion to support the stop. Id. at 1186.

The State argues that the defendant's flight in a high crime area created reasonable suspicion. We disagree. Flight alone is “insufficient to form the basis of a resisting without violence charge.” Id. The officer must have reasonable suspicion prior to ordering an individual to stop. A defendant's response to police pursuit cannot be used to retroactively support suspicion of criminal activity. Hollingsworth v. State, 991 So.2d 990, 992 (Fla. 4th DCA 2008).

The officers also lacked reasonable suspicion based on trespass. The defendant was charged with violating section 810.08, Florida Statutes (2012). A person violates section 810.08 by willfully entering or remaining in any structure or conveyance without permission or by refusing to depart after permission has been revoked. § 810.08(1), Fla. Stat. (2012). Entry into a structure is a necessary element of the offense. C.P. v. State, 99 So.3d 522, 524 (Fla. 3d DCA 2011). There was no evidence presented that the defendant attempted to enter either building, or that either officer believed the defendant was about to attempt entry. A “structure” may include curtilage, but the curtilage area must be enclosed in...