FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-4170

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S. G., a child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Leon County.

Jonathan Sjostrom, Judge.

July 25, 2018

OSTERHAUS, J.

S.G. appeals a juvenile disposition order finding her 

delinquent for resisting an officer without violence. She asserts, 

and we agree, that the State’s evidence was insufficient and the 

trial court should have granted her motion for judgment of 

dismissal. 

I.

S.G. is a minor child who, pursuant to a detention order, was 

under the care of the Children’s Home Society (CHS). She was

required to remain with CHS personnel at all times. In August 

2017, she spent the workday at a CHS office in Tallahassee before 

being told in the afternoon that she would be returning to a

particular CHS shelter for the night. She did not want to go to that 
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particular shelter, but to another one. She became upset and told 

the CHS worker she would not go.

In an effort to have S.G. comply with its plan, the CHS worker 

called law enforcement. A Tallahassee Police Department officer 

responded and spoke with S.G. He told S.G. that she had to comply 

with CHS’s decision about the shelter. When S.G. continued 

insisting that she wouldn’t go to that shelter, the officer told her 

that her other option was being taken into custody and to the 

juvenile assessment center (JAC). S.G. responded that she’d rather 

go to the JAC. And so, she was taken into custody without protest. 

The State proceeded to charge S.G. with resisting an officer 

without violence. In the course of the subsequent trial, after the 

State presented its case, S.G. sought a judgment of dismissal,

questioning the legal sufficiency of the evidence. But the trial court 

denied her motion. She was found guilty of the charges and now 

has appealed.

II.

A motion for judgment of dismissal in juvenile proceedings,

like a motion for judgment of acquittal in criminal proceedings, 

presents the question of whether the evidence is legally sufficient 

to support the charge. See D.S. v. State, 106 So. 3d 991, 993 (Fla. 

1st DCA 2013). The granting of a motion for judgment of dismissal 

is warranted only if “the evidence is insufficient to establish a 

prima facie case of guilt against the child.” Fla. R. Juv. P. 8.110(k).

A defendant moving for a judgment of dismissal “admits not only 

the facts stated in the evidence adduced, but also admits every 

conclusion favorable to the adverse party that a [trier of fact] might 

fairly and reasonably infer from the evidence.” D.S., 106 So. 3d at 

993 (quoting Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974)). We 

review orders denying such motions de novo. Id.

To be found guilty of resisting an officer without violence

under § 843.02, Florida Statutes (2017), the State must prove that 

“(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).

Legal duties include things like serving process, legally detaining 
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a person, or asking for assistance in an emergency situation. See, 

e.g., C.W. v. State, 76 So. 3d 1093, 1095 (Fla. 3d DCA 2011). Courts 

in Florida have drawn a distinction in similar cases “between an 

officer who is engaging in the lawful execution of a legal duty, and 

a police officer who is merely on the job.” Id.; Jay v. State, 731 So.

2d 774, 775 (Fla. 4th DCA 1999). To prove the crime, the officer 

must be lawfully executing a “legal duty.” § 843.02, Fla. Stat.

In this case, the State asserts that the officer’s legal duty arose 

from § 985.101(1)(d). This statute provides that a child may be 

taken into custody by law enforcement when the officer has 

“probable cause to believe that the child is in violation of the 

conditions of the child’s probation, nonsecure detention, 

postcommitment probation, or conditional release supervision; has 

absconded from nonresidential commitment; or has escaped from 

residential commitment.” Id. Given the evidence that S.G. was 

subject to a detention order requiring her to remain with CHS 

personnel at all times, the officer exercised proper authority under 

the statute by taking her into custody after S.G. failed to abide by 

CHS’s decision about the shelter and the conditions of her 

detention. 

The State presented no evidence, however, that S.G. resisted 

the officer’s work of taking her into custody under § 985.101(1)(d).

Rather, the officer testified that S.G. was “relatively calm . . . a 

little bit animated, . . . [but not] aggressive or anything like that.” 

According to the officer, he spoke calmly to her, urging her to 

return to the shelter with her case manager or another CHS 

employee. And he “even gave her the option that [he] could drive 

her there.” But she didn’t want to go to the particular shelter to 

which she had been directed. The officer then offered S.G. an 

alternative, which she accepted. He testified of telling her:

as a 14 year old she can’t decide not to do what her case 

manager wanted her to do. I basically told her, if you don’t 

go to the safe house then our only other option is to take 

you to the Juvenile Assessment Center for a violation of 

the terms of the intervention.

At that point, S.G. chose the JAC. And then she complied with 

being taken into custody. In other words, she did not by her words
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or conduct resist, obstruct, or oppose the officer’s actions in 

carrying out his legal duty of taking her into custody.

What is more, S.G.’s choice of the JAC option, instead of 

following the officer’s first advice to go with CHS, doesn’t support 

the charges of resisting an officer without violence. To prove the 

offense, the State was required to show that S.G. “resist[ed], 

obstruct[ed] or oppose[d]” the officer’s execution of a legal duty or 

process, not merely CHS’s shelter plan for the night. § 843.02, Fla. 

Stat. Her decision not to follow CHS’s plan caused her to violate

the terms of her detention. But it didn’t constitute resisting the 

officer, who wasn’t impeded in his work of taking her into custody

under § 985.101(1)(d).

Because on these facts, the State could not prove that S.G. 

committed the offense of resisting an officer without violence, the 

motion for judgment of dismissal should have been granted. 

III.

Accordingly, we reverse the juvenile disposition order and

remand for dismissal. 

REVERSED and REMANDED.

WETHERELL and RAY, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Andy Thomas, Public Defender, and Archie F. Gardner, Jr., 

Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross,

Assistant Attorney General, Tallahassee, for Appellee.