Vasquez v. State, 5D00-1501.

• Decision Date: 02 March 2001
• Docket Number: No. 5D00-1501.,5D00-1501.
• Citation: 778 So.2d 1068
• Parties: Elliott VASQUEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

778 So.2d 1068

Elliott VASQUEZ, Appellant, v. STATE of Florida, Appellee.

No. 5D00-1501.

District Court of Appeal of Florida, Fifth District.

March 2, 2001.

James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and David H. Foxman, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, J.

Elliott Vasquez appeals his convictions of one count of resisting an officer with violence, a third degree felony, and two misdemeanor counts of resisting an officer without violence. We reverse one conviction for resisting without violence and affirm the other two convictions.

This case amply demonstrates the abuse that law enforcement officers are subjected to from time to time by unruly, intoxicated citizens who show little regard for the law and who impose themselves and their obnoxious behavior on others in public, where all individuals are expected to conduct themselves with at least a modicum of civility. Vasquez was an intoxicated customer in a Steak N' Shake restaurant located in Altamonte Springs. Because of the disturbance he was causing, the manager no longer welcomed his presence. At the time of Vasquez's misbehavior, two bike patrol officers with the Altamonte Springs Police Department entered the parking lot to speak with another officer who was conducting a traffic investigation. The manager of the restaurant approached the officers and requested their assistance in removing the unwanted Vasquez from the premises.

The officers entered the restaurant and found the inebriated Vasquez seated at a booth attempting to eat a salad that was mostly displaced on himself, the table, and the floor. The officers requested several times that Vasquez leave but he refused. In order to take Vasquez into custody and place him under arrest, the officers took Vasquez by the arms and attempted to escort him out of the restaurant. Vasquez became upset, pulled his arm from one of the officers and started to struggle with them. The officers were able to get Vasquez outside at which time they handcuffed him, placed him under arrest, and summoned a patrol car to take Vasquez to the police station. As they were waiting for the patrol car to arrive, one of the officers testified that Vasquez made threats to the effect that "he wanted to kick our ass and stuff of that nature." When the patrol car arrived Vasquez refused to get inside, so one of the officers had to go to the opposite side of the car, get in the vehicle, and pull Vasquez as the other officers pushed him in from the outside. After he was secure in the patrol car, Vasquez was transported to the police station.

The two arresting officers proceeded to the station on their bikes and when they arrived, they witnessed Vasquez yelling profanities at the booking officer. The booking process was never completed because Vasquez was totally uncooperative. When the time came to transport Vasquez, who was secured by handcuffs and shackles, to the jail facility, he again became combative and uncooperative. Several officers had to literally pick Vasquez up by his arms and legs and carry him, kicking and screaming profanities, to the van. It was during this process that Vasquez kicked one of the officers. To place the belligerent Vasquez in the van, the officers utilized the same technique as before with one or more officers pushing him from the outside and another officer pulling Vasquez from inside of the van. Vasquez was eventually transported to jail.

Vasquez contends that his actions constituted a continuous resistance to the ongoing attempt by the law enforcement officers to effect his arrest and take him into custody. Therefore, he argues that he may only be convicted of one charge of resisting pursuant to section 843.01, Florida Statutes (1999). Facially, this argument has merit because the supreme court in Wallace v. State, 724 So.2d 1176 (Fla. 1998) held that a defendant who engages in continuous resistance to the ongoing attempts of law enforcement officers to effect his arrest commits a single instance of obstruction under section 843.01, and may be convicted of only one count of resisting even where several officers are involved in the effort to arrest him. See also Davis v. State, 774 So.2d 862 (Fla. 3d DCA 2000); Damien v. State, 743 So.2d 611 (Fla. 5th DCA 1999); Stanley v. State, 733 So.2d 559 (Fla. 5th DCA 1999). Thus the issue presented in these proceedings is whether the standard established in Wallace requires that Vasquez be convicted of only one charge of resisting.

The State contends, however, that Vasquez did not properly preserve this issue for review by this court because he failed to make appropriate and timely objections in the trial proceedings. We need not...