                       DISTRICT COURT OF APPEAL, FIRST DISTRICT
                                    2000 Drayton Drive
                              Tallahassee, Florida 32399-0950
                               Telephone No. (850)488-6151

                                        February 22, 2019

                                                       CASE NO.: 1D14-2449
                                                       L.T. No.: 13000005CFMXAX


Devin Lee Bass                           v.           State of Florida

Appellant / Petitioner(s),                           Appellee / Respondent(s)

BY ORDER OF THE COURT:

                   ORDER ON MOTIONS FOR REHEARING AND REHEARING EN BANC

     Neither the motion for rehearing nor Judge Makar’s latest dissent on the merits identifies
points of law or fact that the court has overlooked or misapprehended. Therefore, the January
7, 2019 motions for rehearing and rehearing en banc are denied.

RAY and W INSOR, JJ., concur.

MAKAR, J., dissenting from denial of rehearing and rehearing en banc.

      Confusion and conflict. That’s what now exists in this district because the panel’s decision
parts ways with precedent, including M.M. v. State, 51 So. 3d 614 (Fla. 1st DCA 2011), as
Bass’s motions for rehearing and rehearing en banc persuasively demonstrate. The panel
majority holds that a person’s failure to give a correct name to a law enforcement officer
constitutes the crime of obstruction under section 843.02, Florida Statutes, whether the person
was lawfully detained or not. According to the majority, Bass could have been a suspect in
lawful custody, a potential witness, or a mere passerby or onlooker at the time of his fib.
Doesn’t matter: he gave an incorrect name (which, by the way, didn’t fool the officer or hinder
his investigation) and thereby committed the crime of obstruction. But wait. M.M. says that
under section 843.02, “failing to give one's correct identity is not a crime unless the person is
legally detained.” 51 So. 3d at 616 (emphasis added). Bass, too, failed to give a correct
identity, but the majority says it is a crime because “it does not matter” whether he was legally
detained or not. It’s a head scratcher how this case and M.M. can cohabitate in the same
district. This case also butts heads with our sibling courts. Direct and irreconcilable conflict now
exists with districts that have held no criminal liability attaches for giving a false name (or
failing to give a correct identity) unless done while lawfully detained; even the State sides with
Bass on this point, saying it “agrees that the Second District Court of Appeal’s holding in Sauz
v. State, 27 So. 3d 226 (Fla. 2d DCA 2010)[,] that legal detention is required” in this case.
That’s been the standard statewide, one from which the panel decision departs. Because of
the express and direct conflict that now exists, our supreme court ought to clear up this newly-
created muddle.
      I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.

Served:

Trisha Meggs Pate, AAG           Hon. Ashley B. Moody, AG
Donna A. Gerace, AAG             Michael Ufferman
Virginia Chester Harris, AAG     Matthew Pavese, A.A.G.
Kaitlin Weiss, AAG               Hon. Donald C. Spencer, Clerk

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