       Third District Court of Appeal
                               State of Florida

                           Opinion filed March 7, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1368
                         Lower Tribunal No. 16-3106B
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                               I.B., a juvenile,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Maria de Jesus
Santovenia, Judge.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney
General, for appellee.


Before EMAS, SCALES and LUCK, JJ.

      EMAS, J.
      I.B. was charged with the offense of resisting an officer without violence.

At the adjudicatory hearing, following the State’s presentation of its case, I.B.

moved for judgment of dismissal, contending that the police officer had no

founded suspicion to detain I.B. and that, therefore, the State had failed to establish

an element of the offense. The trial court denied the motion and, following the

conclusion of the hearing, found I.B. delinquent of the charged offense.

      We affirm the trial court’s denial of the judgment of dismissal and affirm the

order finding I.B. delinquent of the offense of resisting an officer without violence.

We review de novo the trial court’s denial of a judgment of dismissal, D.L. v.

State, 138 So. 3d 499 (Fla. 3d DCA 2014), and consider the evidence presented,

and the reasonable inferences therefrom, in a light most favorable to the State, to

determine whether substantial competent evidence supports the trial court’s

determinations. K.S.H. v. State, 56 So. 3d 122 (Fla. 3d DCA 2011).

      In order to sustain a charge of resisting an officer without violence, the State

must prove that the officer was engaged in the lawful execution of a legal duty and

that the defendant’s actions obstructed, resisted or opposed the officer in the

performance of that duty. O.B. v. State, 36 So. 3d 784 (Fla. 3d DCA 2010); Fla.

Std. J. Inst. (Crim.) 21.2 (2016) (providing that the State must prove, inter alia, the

officer “was engaged in the execution of legal process” or “lawful execution of a

legal duty”). Importantly, the “element of a lawful execution of a legal duty is



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satisfied if an officer has either a founded suspicion to stop the person or probable

cause to make a warrantless arrest. Otherwise, the individual has a right to ignore

the police and go about his business.” J.W. v. State, 95 So. 3d 372, 378 (Fla. 3d

DCA 2012) (additional citations omitted). Stated another way, if the officer does

not have a founded suspicion to stop an individual, that individual does not commit

the offense of resisting an officer without violence by simply walking away from

the officer or by ignoring his command to stop.

      Having reviewed the record in the instant case, we conclude that the State

presented competent substantial evidence to support the trial court’s determination

that the police officer had a founded suspicion that I.B. had engaged in, was

engaging in, or was about to engage in criminal activity, either directly (possessing

marijuana) or as a principal (by acting as a lookout for others who were about to

engage in vandalism by marking city-owned property with graffiti). Under these

circumstances, and considering the observations made by the officer, the trial court

properly determined there was founded suspicion to temporarily detain I.B. and, in

resisting the officer’s valid attempt to do so, I.B. committed the delinquent act of

resisting an officer without violence.

      Affirmed.




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