State v. Barnard, 80-755
| Decision Date | 07 October 1981 |
| Docket Number | No. 80-755,80-755 |
| Citation | 405 So.2d 210 |
| Parties | STATE of Florida, Appellant, v. Robert Walter BARNARD, Appellee. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellant.
S. G. Green, Orlando, for appellee.
Appellee was charged with two counts of resisting arrest with violence under section 843.01, Florida Statutes (1979). The trial court granted appellee's motion to dismiss under Rule 3.190(c)(4), Florida Rules of Criminal Procedure, on the ground that neither deputy sheriff involved in the arrest was "in the lawful performance of (his) duty at the time of the incident." The State appeals. The issue on appeal is whether the finding by the trial court that the deputies were not in the lawful performance of their duties is sufficient here to sustain the dismissal of the charges of resisting arrest with violence. We reverse.
The sworn motion sets forth a factual recitation upon which appellee bases his contention that the attempted arrest of appellee was illegal 1 because it was made in appellee's home and without a warrant, relying on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Appellee's motion also recited facts which appellee says clearly shows that there was no resistance with violence. The State traversed the factual recitations so we face only the question of law, viz: does a warrantless felony arrest in a defendant's home justify the use of force to resist such arrest?
The correct rule on the subject has been stated in Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978):
Thus, after July 1, 1975, section 843.01 must be read in pari materia with section 776.051; 2 the end result being that the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest.
The officers were in uniform when the arrest was made. They had received an official complaint that appellee had threatened persons with a firearm; thus they had probable cause to believe that appellee had committed a felony. They first talked to appellee outside his home and advised him that he was under arrest and he turned and ran into his home. The officers followed and the incident giving rise to these charges took place.
Since appellee was not justified in using force against the uniformed officers whom he knew to be law enforcement officers who had come to arrest him, Payton, does not control the result here. Although appellee...
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Tillman v. State
...known to be a law enforcement officer is unlawful regardless of whether the arrest is technically illegal. Id. (citing State v. Barnard, 405 So.2d 210 (Fla. 5th DCA 1981), and Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978)). The Fifth District explained that it had extended this rule t......
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Fernandez v. City of Cooper City
...the technical illegality of the arrest." Tillman v. State, 807 So.2d 106, 108-09 (Fla. 5th DCA 2002) (quoting State v. Barnard, 405 So.2d 210 (Fla. 5th DCA 1981)); see also State v. Giddens, 633 So.2d 503, 503 (Fla. 5th DCA 1994). The Tillman court predicated this conclusion on Fla. Stat. §......
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Espiet v. State
...to Count II, aggravated assault on a law enforcement officer with a firearm, we must affirm that conviction based on State v. Barnard, 405 So.2d 210 (Fla. 5th DCA 1981), which is a decision that was neither cited by the parties in their briefs nor argued to this court during oral argument. ......
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Tillman v. Beary, CASE NO. 6:09-cv-1667-Orl-31DAB
...arrest was unlawful, notwithstanding what it termed the "technical illegality"of the arrest. Id. at 108-09 (citing State v. Barnard, 405 So.2d 210 (Fla. 5th DCA 1981), and Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978)). Also based on Fla. Stat. § 776.051, the appellate court had exten......