DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

D.J.D., a child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D12-1242

[August 6, 2014]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Nicholas Lopane, Judge; L.T. Case No. 11-4288 DL00A.

Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. 

Comras, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

The juvenile appeals his adjudication for assault on a law enforcement 

officer. He argues that because the officer was not engaged in the lawful 

performance of a duty when the assault occurred, the circuit court erred 

in denying his motion for judgment of dismissal to reduce the charge from 

assault on a law enforcement officer to the lesser included offense of 

assault. We agree with the juvenile’s argument and reverse.

At the adjudicatory hearing, an officer who witnessed the assault 

testified as follows. He and two other uniformed officers received a 

dispatch to assist a Department of Children and Families (“DCF”) 

investigation of a woman and her young child at her apartment. When the 

officers arrived at the apartment, the DCF investigator advised them that 

she discovered the juvenile living with the woman and her child. The 

woman told the DCF investigator she believed that the juvenile was an 

adult. When the woman learned that the juvenile was not an adult, she

said that she wanted the juvenile to leave.
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The officers contacted the juvenile’s mother and told her to pick him 

up. The officers then took the juvenile outside and detained him until his 

mother arrived. The officers instructed him that he was not to come back 

to the apartment and that he was being turned over to his mother. The 

juvenile said that he did not want to go with his mother and wanted to 

walk off on his own. The officers told him that he had “to be turned over 

to an adult” and could not “walk off when subject to an investigation.” The 

officer later testified that the juvenile was not the subject of an

investigation.

When the juvenile’s mother arrived, the officers explained the situation 

to her. She told the officers that the juvenile frequently runs away and 

she could not control him. The officers then instructed the juvenile to get 

into his mother’s car. The juvenile sat partially in and partially out of the 

car, and then started arguing with one of the officers who was standing 

next to the door. The juvenile again said that he did not want to go with 

his mother and wanted to leave on foot. The officer with whom the juvenile 

was arguing said, “Come with me . . . you’re going to go to jail for 

trespassing.” At that point, the juvenile became combative. He took a 

fighting posture, clenched his fists, and said, “I’m not going anywhere” and 

“I’m going to punch you in your s***.” The officer then said, “Okay. Put 

your hands behind the back of your [head], you’re under arrest,” and 

grabbed the juvenile’s hand. At that point, the juvenile, with a clenched 

fist, pushed the officer in the chest. The officer then took the juvenile into 

custody.

The state ultimately filed a petition for delinquency charging the 

juvenile with assault on a law enforcement officer under section 

784.07(2)(a), Florida Statutes (2011). That statute provides, in pertinent 

part, as follows:

(2) Whenever any person is charged with knowingly 

committing an assault . . . upon a law enforcement officer . . . 

while the officer . . . is engaged in the lawful performance of his 

or her duties, the offense for which the person is charged shall 

be reclassified as follows:

(a) In the case of assault, from a misdemeanor of the second 

degree to a misdemeanor of the first degree.

§ 784.07(2)(a), Fla. Stat. (2011) (emphasis added).

After the state rested, the juvenile moved for a judgment of dismissal. 

The juvenile argued, in pertinent part:
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In order for the State to show that an assault or a battery 

takes place on a law enforcement officer . . . [the State has] to 

show that [the] officer was in the legal execution of his duty 

because a person has a right to resist any unlawful arrest.

. . . .

[T]here’s no testimony that [the officer] was in the lawful 

execution of his duty. At [the time of the assault], according 

to the testimony, the [juvenile] was with the mother. They had 

fulfilled their obligation. That he was ordered to go, be with 

his mother, and he could only be turned over to her custody 

before he could leave. She met with him. If he wanted to walk 

off that was now the mother’s jurisdiction to decide how to 

handle that situation. He was off the premises of the 

apartment [and] he was no longer interfering at all with the 

investigation by DCF. This is a completely separate incident. 

Maybe he was mouthy, disrespectful to the officer but that’s 

not enough to sustain this.

. . . .

The state responded that because the officers were assisting in a DCF 

investigation and investigating a possible trespass, they were engaged in 

the lawful execution of their duty. The court denied the motion.

In the juvenile’s case-in-chief, the juvenile’s mother testified that when 

she got to the apartment location, she told the juvenile to get into her car. 

He said that he was going to walk, and started walking. The juvenile’s 

mother testified she “was okay with that” because she knew he needed to 

cool down and she knew the area. However, when the juvenile started 

walking, “the officers pulled their car in front of him and pulled him to the 

ground; told him to get in [her] car.” The officers then pulled the juvenile

back up, and again told him to get in her car. When the juvenile became 

defiant and did not move, the officers put him in their car.

After the juvenile rested, he renewed his motion for a judgment of 

dismissal. The juvenile argued, in pertinent part:

[The State has] to show that this officer was in the legal 

execution of his duty. And there’s a difference between a cop 

just being on duty and being in a legal execution of a duty 

here. And that wasn’t established by the State. The child was 
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ordered to go to his mother, he did. The mother had decided 

the best way to handle this case was to let him cool down, 

walk off. She had the experience. She knew what she was 

doing. And the situation and in her estimation was being 

resolved. The officers took it upon themselves to come back 

and grab the child at that point [and arrest him].

. . . They no longer were in lawful execution of a duty, the 

child was not inhibiting, or delaying, or obstructing the DCF 

investigation at all. He was not being detained for any sort of 

investigation at all regarding anything. . . . .

Also, with . . . the lack of the execution of duty, the child 

really has no obligation to do anything except . . . leave the 

apartment, which he did and was satisfied. And then fall into 

the mother’s jurisdiction to handle that. There’s really 

nothing . . . further because the State hasn’t met those 

elements and established that there was a legal duty at that 

point. . . . .

The circuit court denied the motion for judgment of dismissal. The 

court then found the juvenile guilty of assault on a law enforcement officer 

and adjudicated him delinquent.

This appeal followed. The standard of review applicable to the denial of 

a motion for judgment of dismissal in a juvenile case is de novo. A.R. v. 

State, 127 So. 3d 650, 653 (Fla. 4th DCA 2013) (citation omitted). If the 

evidence taken in the light most favorable to the state does not support 

the juvenile’s guilt, then we must reverse the denial of the motion for 

judgment of dismissal. Id.

The juvenile argues that the circuit court erred in denying his motion 

for a judgment of dismissal as to the enhanced offense of assault on a law

enforcement officer, and that we should remand the case with directions 

to reduce the adjudication to the lesser included offense of assault.

The state argues that, at the time of the assault, the officer was engaged 

in the lawful performance of a duty in three ways:

First . . . the police were still assisting with the DCF 

investigation and by not actually leaving the premises, there 

was a real possibility that [the juvenile] would have returned 

to the residence, where he had been living, and interrupted or 

interfered with the investigation. Thus, they had a legal duty 
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to ensure that he left the premises completely. And the only 

way to ensure this would be if [the juvenile] left in the car with 

his mother. If [the juvenile] left on foot, as he wanted, he could 

have easily returned to the residence, contrary to [the 

woman’s] wishes . . . .

Second, while [the juvenile] was not initially the subject of 

the DCF’s investigation of [the woman] and the child, he 

became the subject of a DCF investigation and subject to 

detention by the police, until he could be released to a parent, 

because it was disclosed during the initial investigation that 

he was under the age of 18 and he was having a sexual 

relationship with [the woman], an adult. See § 794.011(8), 

Fla. Stat. (2011) (sexual battery of a child between the ages of 

12 and 18 and noting that consent is not a defense); 

§ 39.401(1)-(2), Fla. Stat. (2011) (Taking a child alleged to be 

dependent into custody; law enforcement officers and 

authorized agents of the department. – A child may only be 

taken into custody by a law enforcement officer if the officer 

has probable cause to support a finding that the child has 

been abused and if the officer takes the child into custody, the 

officer shall release the child to the parent of the child). . . . 

Third, when the mother arrived on the scene to pick [the 

juvenile] up, she told the police that her son was a frequent 

runaway and she could not control him. At this point, the 

police were authorized under their community care-taking 

function to take [the juvenile] into custody and release him to 

her care. See § 984.13, Fla. Stat. (2011) (authorizing and 

obligating a law enforcement officer to take a child into 

custody if the officer has reasonable grounds to believe that 

the child has run away from his parents); see also D.O. v. 

State, 77 So. 3d 787, 790 (Fla. 3d DCA 2011) [(Emas, J., 

specially concurring)] (“Law enforcement, in a very real sense, 

fulfills a role as a ‘community caretaker’ when they encounter 

. . . child runaways . . . and children beyond the control of 

their parents. They have not only the authority, but also a 

statutory obligation, to quickly reunite the child with their 

parent or guardian, or return the child to school or the 

appropriate agency that can provide the services needed in

light of the individual circumstances.”) (emphasis added).
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We agree with the juvenile’s argument for reduction of the enhanced 

offense, and conclude that the state’s three arguments for the enhanced 

offense lack merit. We address each of the state’s three arguments in turn.

 

The state’s first argument appears to suggest that the officers arrested 

the defendant for the crime of “possible later trespass” of the woman’s 

residence. However, no such crime exists. Moreover, the officers could 

not lawfully arrest the juvenile for trespass in the woman’s residence due 

to his earlier presence there because he already had left that residence

after being told to do so. Cf. F.E.H., Jr. v. State, 28 So. 3d 213, 217 (Fla. 

4th DCA 2010) (detective who approached juvenile in the parking lot of a 

closed daycare center lacked reasonable suspicion to make an

investigatory stop of the juvenile for trespassing where the parking lot was 

an open lot on a corner and the juvenile already had left the lot when he 

was stopped).

The state’s second argument lacks merit as a matter of law. The officer 

who testified at the adjudicatory hearing conceded that the juvenile was 

not the subject of a DCF investigation, and the record contains no evidence 

that the officers were seeking to take the juvenile into custody as a

dependent child. Moreover, no legal basis existed for the officers to take 

the juvenile into custody as a dependent child. The juvenile was not an 

abuse victim under section 794.011(8)(b), Florida Statutes (2011), as the 

state alleges, because the woman with whom he was living was not “a 

person . . . in a position of familial or custodial authority” over him. 

§ 794.011(8)(b), Fla. Stat. (2011). As for the relationship between the 

juvenile and his mother, the officers had no information to form a probable 

cause finding that he had been “abused, neglected, or abandoned, or [was] 

suffering from or [was] in imminent danger of illness or injury as a result 

of abuse, neglect, or abandonment.” § 39.401(1)(b)1., Fla. Stat. (2011).

The state’s third argument also lacks merit as a matter of law. Although 

the juvenile’s mother told the officers that he frequently runs away and 

she could not control him, the record contains no evidence that the officers 

were seeking to take the juvenile into custody as a runaway. See 

§ 984.13(1)(a), Fla. Stat. (2011). As for the “community caretaker” role 

described in D.O., the officers already had fulfilled that role by reuniting 

the juvenile with his mother. Although the juvenile again said that he did 

not want to go with his mother and wanted to leave on foot, his mother did 

not request the officers to prevent him from doing so, and he had not done 

so before the officer at issue told him “you’re going to go to jail for 

trespassing” and grabbed the juvenile out of his mother’s car. Without 

more information from the mother or more action from the juvenile, it was 
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premature for the officer at issue to intervene in the mother’s custody of 

her son at that time, even if well-intentioned.

In sum, because the officer whom the juvenile pushed was not engaged 

in the lawful performance of his duty at the time of the assault, the circuit 

court erred in denying the juvenile’s motion for judgment of dismissal to 

reduce the charge from the enhanced offense of assault on a law 

enforcement officer to the lesser included offense of assault. We reverse 

and remand with instructions for the circuit court to adjudicate the 

juvenile of the lesser included offense of assault, and to conduct any 

further proceedings necessary as a result of that lesser adjudication.

Reversed and remanded with instructions.

GROSS and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.