Florida Statute § 843.01 provides in pertinent part: “Whoever knowingly and willfully resists, obstructs, or opposes any officer ... in the lawful execution of any legal duty, by offering or doing violence to the person of such officer ... is guilty of a felony of the third degree ....” Id. (emphasis added). As for the nature of the force required to sustain a conviction under § 843.01, Florida's appellate courts have held that “violence is a necessary element of the offense.” Rawlings v. State, 976 So.2d 1179, 1181 (Fla. 5th DCA 2008); see also Walker v. State, 965 So.2d 1281, 1284 (Fla. 2d DCA 2007) (“One of the elements of resisting arrest with violence under section 843.01 is either offering to do violence or actually doing it.”). Moreover, Florida's courts have held that “doing violence” in this context “plainly involves the use ... of physical force or violence.” Harris v. State, 5 So.3d 750, 751 (Fla. 1st DCA 2009) (quotation omitted).
In looking to the decisions of Florida's intermediary courts before, we have held that a prior conviction for resisting an officer with violence categorically qualifies as a violent felony under the elements clause of the ACCA. See United States v. Romo–Villalobos, 674 F.3d 1246, 1251 (11th Cir.2012) (per curiam) (concluding that a conviction under section 843.01 “is sufficient for liability under the first prong of the ACCA” (internal quotation marks omitted)). Therefore, we conclude that the district court erred in finding that Hill's Florida conviction for resisting an officer with violence under section 843.01 did not constitute a violent felony under the ACCA.
I join the majority because I cannot say that it is unreasonable to interpret the "lawful execution of a legal duty" element in sections 784.07(2) and 843.01 according to its plain meaning, especially in the absence of any contrary legislative intent expressly stated in sections 784.07(2) and 843.01, Florida Statutes (2005). However, I write separately to note my concern that this interpretation may narrow the intended scope of protection for public officials further than actually intended and, thereby, undermine the very purpose of these statutes.
Our statutory construction analysis is further facilitated by an interpretation of the essential elements of the offense of resisting an officer without violence under section 843.02, Florida Statutes (2002), a permissive lesser included offense of resisting an officer with violence under section 843.01. See State v. Espinosa, 686 So.2d 1345, 1347 (Fla. 1996). Section 843.02 states that "[w]hoever shall resist, obstruct, or oppose any officer . . . 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." Similar to section 843.01, this provision specifies that it is unlawful to "resist, obstruct or oppose any officer." §§ 843.01, 843.02, Fla. Stat. However, unlike section 843.01, there is no language in section 843.02 requiring the defendant to act "knowingly and willfully." Yet courts, including the Third District in this case, have interpreted section 843.02 as requiring proof of a defendant's knowledge of the officer's status. See Polite, 933 So.2d at 592-93; Cooper, 742 So.2d at 857; Harris v. State, 935 So.2d 1259, 1262 (Fla. 5th DCA…
Wallace was arrested and charged with numerous offenses, including multiple counts of battery on a law enforcement officer, aggravated assault on a law enforcement officer, aggravated battery, and two counts of resisting an officer with violence under section 843.01. Upon conviction,Wallace appealed, contending that section 843.01 permitted only one charge and conviction for resisting the officers in their attempt to arrest him, regardless of whether more than one officer was involved, since the evidence showed continuous resistence of the attempted arrest in a single incident. The Fourth District rejected his appeal, holding that section 843.01 allows separate convictions for each individual officer actually present and resisted at the scene. Wallace, 689 So.2d at 1163. In so holding, however, the district court recognized and certified conflict with Pierce v. State, 681 So.2d 873 (Fla. 1st DCA 1996). Id.
We reject Nix's challenge to the § 843.01 conviction, holding that a such conviction constitutes a violent felony under 18 U.S.C. § 924(e)(2)(B)(ii). This is the same holding we recently reached in United States v. Hayes, 2010 WL 3489973 (September 8, 2010). Although the Hayes decision was not published, we are persuaded by its rationale regarding § 843.01 and therefore adopt its holding. Nix's challenge to the § 316.1935(3) conviction is foreclosed by United States v. Harris, 586 F.3d 1283 (11th Cir. 2009), which we are bound to follow.
Consistent with the proposals of Professors Scott and LaFave discussed above, the American Law Institute committee has explained that when "purpose" or "knowledge" is an element of a crime, proof of intoxication may logically negate the existence of either. See State v. Doyon, 416 A.2d 130, 136 (R.I. 1980) (citing Model Penal Code, Tent. Draft No. 9 at 2-9 (1959)). To violate section 843.01, it is evident that "knowledge" of the fact that one is obstructing an officer is an element of the crime of resisting arrest with violence. Thompson; Chicone. Therefore, under the sensible "element" approach to determining whether voluntary intoxication can negate the mental element of a crime, it is apparent that a defendant would be allowed to put on evidence that his level of intoxication rendered him unable to form the "knowledge" element of the crime of resisting arrest with violence under section 843.01.
Wright's challenge to the sufficiency of the evidence fails, as well. One violates section 843.01, Florida Statutes (1995), by "offering or doing violence" to a law enforcement officer. Thus, the state was not required to prove that Wright actually struck either officer. Evidence that Wright struggled, kicked, and flailed his arms and legs was sufficient to show that he offered to do violence to the officers within the meaning of section 843.01. State v. Davis, 652 So.2d 942 (Fla. 5th DCA 1995); State v. Green, 400 So.2d 1322 (Fla. 5th DCA 1981).
Battery on a law enforcement officer and resisting an officer with violence are distinct offenses but they share some common elements of proof and are often committed in conjunction with one another. A conviction for either offense requires proof that the officer was engaged in the performance of a lawful duty.See State v. Henriquez, 485 So.2d 414 (Fla. 1986). Section 843.01, Florida Statutes states in material part, that "[w]hoever knowingly and willfully resists, obstructs, or opposes any officer . . . in the lawful execution of any legal duty, by offering or doing violence to the person of such officer . . . is guilty of a felony in the third degree." (emphasis supplied). Likewise, section 784.07 (2) reclassifies a simple battery to a felony in the third degree if the victim is a law enforcement officer "engaged in the lawful performance of his or her duties."
The State charged Kaigler with cocaine possession, resisting with violence in violation of section 843.01, Florida Statutes (2003), and battery of a law enforcement officer in violation of section 784.07, Florida Statutes (2003). Kaigler moved to suppress the cocaine. The trial court granted the motion on the ground that the officer's observation of Kaigler sitting in his car was an insufficient basis for establishing a well-founded suspicion of criminal activity — in other words, that the stop was illegal. After the trial court ordered the cocaine suppressed, defense counsel argued that the other two counts should be dismissed because the State could no longer prove a statutory element of each of these charges: that the officer was "in the lawful execution of any legal duty," § 843.01 (resisting with violence), or "engaged in the lawful performance of his or her duties," § 784.07(2) (battery of a law enforcement officer). The court's denial of the motion to dismiss these remaining counts forms the basis of this appeal.