DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

EDMOND ST. FLEURY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-787 

[May 2, 2018]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Edward H. Merrigan Jr., Judge; L.T. Case No. 16-3689 

CF10A.

Carey Haughwout, Public Defender, and Brad R. Schlesinger, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, 

Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

The issue for our consideration is whether the evidence presented at 

trial was sufficient to support a conviction for disorderly conduct. We find

that because the state failed to prove that appellant posed an imminent 

danger to others or that appellant’s words incited others to breach the 

peace, the trial court erred when it denied appellant’s motion for judgment 

of acquittal on his disorderly conduct charge. Accordingly, we reverse 

appellant’s conviction for that charge.1

Appellant went to a pet store to purchase a pet lizard. A store employee 

began questioning appellant about whether he would be able to take care 

of the lizard. The store manager then came over to tell appellant that the 

store would not be selling him the lizard because the manager did not 

think he would be able to take care of it.

1 Appellant does not appeal his conviction and sentence for resisting a law 

enforcement officer with violence. 
2

Upon hearing this, appellant began to loudly demand that the manager

sell him the lizard. His argument with the manager caused patrons of the 

store to stop and stare. Others simply left the store. At this point, the

manager asked appellant to leave, but appellant refused. The manager 

then called the police.

Two deputies from the Broward Sheriff’s Office were the first to respond. 

Appellant told them that he did not want to leave the store because he 

wanted to buy the particular lizard he had been considering. One of the 

deputies asked appellant to produce his identification. Appellant did not 

cooperate and explained that his license was in his car. Appellant became 

boisterous and began cursing at the deputies, who repeatedly told him to 

calm down. Around this time, two more deputies arrived and instructed 

the remaining customers in the store to exit the premises. At no time did 

appellant threaten violence against any of the customers or the officers.

Appellant was then informed that he was being placed under arrest for 

disorderly conduct because he was being loud and boisterous. One of the 

deputies attempted to handcuff appellant while another tried to grab his

arm. Appellant started to thrash back and forth and then punched one of 

the deputies in the chest. Eventually, the officers were able to tase and 

handcuff appellant. Appellant was arrested and charged with disorderly 

conduct and resisting a law enforcement officer with violence. 

At trial, after the state rested its case, appellant moved for judgment of 

acquittal on the disorderly conduct charge, arguing that the state had 

failed to prove the elements of disorderly conduct. The trial court denied 

the motion. The jury found appellant guilty. Appellant appeals his 

conviction and sentence for disorderly conduct.

We review de novo the denial of a motion for judgment of acquittal. 

Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).

Section 877.03, Florida Statutes (2016), which criminalizes disorderly 

conduct, provides:

Whoever commits such acts as are of a nature to corrupt the 

public morals, or outrage the sense of public decency, or affect 

the peace and quiet of persons who may witness them, or 

engages in brawling or fighting, or engages in such conduct 

as to constitute a breach of the peace or disorderly conduct, 

shall be guilty of a misdemeanor of the second degree . . . .

To withstand constitutional challenge, the Florida Supreme Court has 
3

limited the scope of section 877.03 “to words which ‘by their very utterance 

. . . inflict injury or tend to incite an immediate breach of the peace; or to 

words, known to be false, reporting some physical hazard in 

circumstances where such a report creates a clear and present danger of 

bodily harm to others.” State v. Saunders, 339 So. 2d 641, 644 (Fla. 1976)

(citations omitted). 

The statute is to be construed so that “no words except ‘fighting words’ 

or words like shouts of ‘fire’ in a crowded theatre fall within its proscription

. . . .” Id. Therefore, “a violation of Fla. Stat. § 877.03, F.S.A., requires 

more than the creation of a mere annoyance.” Id. at 643; see Chaplinsky 

v. State of New Hampshire, 315 U.S. 568, 572 (1942) (identifying the types 

of speech that can be regulated, including fighting words “which by their 

very utterance inflict injury or tend to incite an immediate breach of the 

peace”). For example, mere boisterous behavior, even if it disrupts the 

operations of a business and draws onlookers’ attention, is not by itself 

enough to sustain a disorderly conduct conviction.

In Smith v. State, 967 So. 2d 937 (Fla. 2d DCA 2007), the defendant 

was inside a bank yelling and cursing at a bank employee and 

subsequently at a police officer who responded. Customers could hear the 

defendant’s verbal attacks, and some even made comments about the 

language being used. The Second District held that the evidence did not 

support the conviction of disorderly conduct, whether it occurred inside or 

outside the bank, because there was no evidence that the bank customers 

“responded to [the defendant’s] words in any particular manner” or were 

incited to engage in an immediate breach of the peace. Id. at 940.

In Fields v. State, 24 So. 3d 646 (Fla. 3d DCA 2009), the defendant’s 

conviction for disorderly conduct was also reversed. There, a crowd 

gathered to watch the defendant yelling while he was on the phone in the 

doorway of a bank. When an officer responded, a physical altercation 

ensued, making the bank customers afraid to enter or exit the bank. The 

Third District reversed the defendant’s conviction for disorderly conduct, 

noting:

[T]he mere fact that other people come outside or stop to 

watch what is going on is insufficient to support a conviction 

for disorderly conduct. Instead, there must be some evidence 

that the crowd is actually responding to the defendant’s words 

in some way that threatens to breach the peace. 

Id. at 648 (citation omitted).
4

The instant case is distinguishable from Wiltzer v. State, 756 So. 2d 

1063 (Fla. 4th DCA 2000), on which the state relies. There, the defendant’s

conviction for disorderly conduct was upheld because the defendant 

pushed the officer and threw his wallet at him when the officer informed 

him that the store was closing and he would have to leave. It was only 

after the defendant made this physical contact that the officer arrested the 

defendant for disorderly conduct. This court determined that the 

defendant’s “physical conduct during the encounter with [the officer] was 

sufficient to sustain a conviction under section 877.03.” Id. at 1066. Here, 

in contrast, appellant did not use any force or threaten any violence until 

after the deputies had arrested him for disorderly conduct.

In the instant case, there was no evidence introduced at trial that 

appellant posed an imminent danger to others. In fact, the evidence 

showed that appellant did not threaten any violence or participate in any 

violent act until he was arrested for disorderly conduct. This post-arrest 

conduct cannot form the basis for a disorderly conduct charge. 

Furthermore, no evidence suggested that appellant’s words amounted to 

“fighting words” or that those who gathered to watch what was going on 

were inclined to breach the peace. Instead, the evidence showed a 

disruption in business, which is insufficient grounds for a disorderly 

conduct conviction. See Fields, 24 So. 3d at 648; Smith, 967 So. 2d at 940. 

For the foregoing reasons, we reverse the conviction for disorderly conduct.

Reversed and remanded. 

WARNER and GROSS, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.