ROGERS v. STATE (2001)

District Court of Appeal of Florida,First District.

Curtis ROGERS, Appellant, v. STATE of Florida, Appellee.

No. 1D00-1372.

Decided: March 14, 2001

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant. Robert A. Butterworth, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.

We find that the trial court improperly denied the appellant's motion for judgment of acquittal on the charge of resisting an officer without violence because under the facts presented, the officer did not have probable cause to arrest the appellant when he handcuffed him and ordered him to divulge the contents of his mouth. Because the officer was not lawfully executing a legal duty, the appellant was entitled to resist the order without violence. Williams v. State, 727 So.2d 1050 (Fla. 2d DCA 1999); Mayhue v. State, 659 So.2d 417 (Fla. 2d DCA 1995). We reject the state's argument that this issue, which was considered by the trial judge, was not preserved for appellate review.

The conviction is REVERSED.

BARFIELD, C. J.

ALLEN and BROWNING, JJ., concur.

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