C.W. V. STATE

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C.W. V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 10-1591

Case Date: 12/28/2011

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2011
Opinion filed December 28, 2011. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D10-1591 Lower Tribunal No. 10-1487 ________________

C.W., a juvenile,
Appellant, vs.

The State of Florida,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, William Johnson, Judge. Carlos J. Martinez, Public Defender, and Howard Blumberg, Public Defender, and Courtney A. Deblis and Kathryn M. Winkler, Certified Legal Interns, for appellant. Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, and Jeffrey H. Siegal, Certified Legal Intern, for appellee. Before SUAREZ, ROTHENBERG, and LAGOA, JJ. SUAREZ, J.

C.W., a juvenile, appeals from an order denying his motion for judgment of dismissal and adjudication of delinquency. We reverse, and remand with

instructions to discharge the adjudication of delinquency.1 C.W. was initially charged with disorderly conduct and resisting arrest without violence.2 The underlying basis for the arrest was the alleged disorderly conduct, which in turn arose from an uncharged violation of section 316.2045, Florida Statutes (2010), a pedestrian infraction for obstructing traffic. The

uncharged traffic obstruction offense was premised upon appellant's act of standing in the road, a couple of feet from the swale, and refusing to move off of the street when the officer asked him to, although the record also shows that there was no traffic on the street at the time. The record does reveal that C.W. was talking to another boy, his cousin, when they saw the police car slowly approaching. The officers veered slightly around the kids, and asked them to move out of the roadway. When they did not, the officers parked, approached the boys and ordered

In juvenile proceedings, a motion for judgment of acquittal is actually referred to as a motion for judgment of dismissal. See Fla. R. Juv. P. 8.110(k). However, the same de novo standard of review that applies to a motion for judgment of acquittal applies to a motion for judgment of dismissal because the motion tests the legal sufficiency of the state's evidence. See A.A.R. v. State, 926 So. 2d 463, 465 (Fla. 4th DCA 2006). C.W. was arrested on March 18, 2010; the docket for this date shows him as charged only with disorderly conduct and resisting arrest without violence. The sole charge that appears in the March 19, 2010, Petition for Delinquency, however, is that of resisting arrest without violence. 2
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them to move out of the road and onto the unpaved swale. At this point, the record shows that C.W refused to step out of the street and used profanity. The officers then arrested him. The record does not show that C.W. was ever given a citation for the pedestrian violation and it is not cited as a basis for the arrest. The Petition for Delinquency only states that C.W. failed "to follow the order of said officer to get out of the street where traffic was moving . . . ."3 Although he was arrested for

disorderly conduct, neither the record nor the Petition for Delinquency show that C.W. was prosecuted for disorderly conduct.4 The only charge for which

Appellant was adjudicated delinquent was the charge of resisting an officer without violence in violation of section 843.02, Florida Statutes (2007).5

This contradicts later testimony from both officers and C.W., all of whom consistently testified that there was no traffic on the road until after C.W. had been arrested. There was no charge of disorderly conduct cited or referenced in the March 19, 2010, Petition for Delinquency. Although the Petition for Delinquency does not show a charge for disorderly conduct, the docket and the post-adjudication documents still erroneously show the unprosecuted disorderly conduct charge.
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Section 843.02 states in pertinent part that: Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9) . . . or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. 3

To convict a defendant of obstructing or resisting an officer without violence, the State must prove two elements: (1) the officer was engaged in the lawful execution of a legal duty and (2) the defendant's action constituted obstruction or resistance of that lawful duty. J.P. v. State, 855 So. 2d 1262, 126566 (Fla. 4th DCA 2003); Jay v. State, 731 So. 2d 774 (Fla. 4th DCA 1999). The State fails to sustain either element. The evidence does not support a conclusion that the officers were engaged in the lawful execution of a legal duty with their initial request that C.W. step out of the street. The case law provides that "legal duties" include (1) serving process; (2) legally detaining a person; or (3) asking for assistance in an emergency situation, or 4) impeding officers' undercover activities by acting as a "lookout" during the commission of a criminal act. See, e.g., Davis v. State

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