           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4170
                  _____________________________

S. G., a child,

     Appellant,

     v.

STATE OF FLORIDA,

     Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Jonathan Sjostrom, Judge.

                           July 25, 2018


OSTERHAUS, J.

     S.G. appeals a juvenile disposition order finding her
delinquent for resisting an officer without violence. She asserts,
and we agree, that the State’s evidence was insufficient and the
trial court should have granted her motion for judgment of
dismissal.

                                 I.

    S.G. is a minor child who, pursuant to a detention order, was
under the care of the Children’s Home Society (CHS). She was
required to remain with CHS personnel at all times. In August
2017, she spent the workday at a CHS office in Tallahassee before
being told in the afternoon that she would be returning to a
particular CHS shelter for the night. She did not want to go to that
particular shelter, but to another one. She became upset and told
the CHS worker she would not go.

     In an effort to have S.G. comply with its plan, the CHS worker
called law enforcement. A Tallahassee Police Department officer
responded and spoke with S.G. He told S.G. that she had to comply
with CHS’s decision about the shelter. When S.G. continued
insisting that she wouldn’t go to that shelter, the officer told her
that her other option was being taken into custody and to the
juvenile assessment center (JAC). S.G. responded that she’d rather
go to the JAC. And so, she was taken into custody without protest.

    The State proceeded to charge S.G. with resisting an officer
without violence. In the course of the subsequent trial, after the
State presented its case, S.G. sought a judgment of dismissal,
questioning the legal sufficiency of the evidence. But the trial court
denied her motion. She was found guilty of the charges and now
has appealed.

                                  II.

     A motion for judgment of dismissal in juvenile proceedings,
like a motion for judgment of acquittal in criminal proceedings,
presents the question of whether the evidence is legally sufficient
to support the charge. See D.S. v. State, 106 So. 3d 991, 993 (Fla.
1st DCA 2013). The granting of a motion for judgment of dismissal
is warranted only if “the evidence is insufficient to establish a
prima facie case of guilt against the child.” Fla. R. Juv. P. 8.110(k).
A defendant moving for a judgment of dismissal “admits not only
the facts stated in the evidence adduced, but also admits every
conclusion favorable to the adverse party that a [trier of fact] might
fairly and reasonably infer from the evidence.” D.S., 106 So. 3d at
993 (quoting Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974)). We
review orders denying such motions de novo. Id.

      To be found guilty of resisting an officer without violence
under § 843.02, Florida Statutes (2017), the State must prove that
“(1) the officer was engaged in the lawful execution of a legal duty;
and (2) the defendant’s action, by his words, conduct, or a
combination thereof, constituted obstruction or resistance of that
lawful duty.” C.E.L. v. State, 24 So. 3d 1181, 1185-86 (Fla. 2009).
Legal duties include things like serving process, legally detaining
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a person, or asking for assistance in an emergency situation. See,
e.g., C.W. v. State, 76 So. 3d 1093, 1095 (Fla. 3d DCA 2011). Courts
in Florida have drawn a distinction in similar cases “between an
officer who is engaging in the lawful execution of a legal duty, and
a police officer who is merely on the job.” Id.; Jay v. State, 731 So.
2d 774, 775 (Fla. 4th DCA 1999). To prove the crime, the officer
must be lawfully executing a “legal duty.” § 843.02, Fla. Stat.

     In this case, the State asserts that the officer’s legal duty arose
from § 985.101(1)(d). This statute provides that a child may be
taken into custody by law enforcement when the officer has
“probable cause to believe that the child is in violation of the
conditions of the child’s probation, nonsecure detention,
postcommitment probation, or conditional release supervision; has
absconded from nonresidential commitment; or has escaped from
residential commitment.” Id. Given the evidence that S.G. was
subject to a detention order requiring her to remain with CHS
personnel at all times, the officer exercised proper authority under
the statute by taking her into custody after S.G. failed to abide by
CHS’s decision about the shelter and the conditions of her
detention.

      The State presented no evidence, however, that S.G. resisted
the officer’s work of taking her into custody under § 985.101(1)(d).
Rather, the officer testified that S.G. was “relatively calm . . . a
little bit animated, . . . [but not] aggressive or anything like that.”
According to the officer, he spoke calmly to her, urging her to
return to the shelter with her case manager or another CHS
employee. And he “even gave her the option that [he] could drive
her there.” But she didn’t want to go to the particular shelter to
which she had been directed. The officer then offered S.G. an
alternative, which she accepted. He testified of telling her:

    as a 14 year old she can’t decide not to do what her case
    manager wanted her to do. I basically told her, if you don’t
    go to the safe house then our only other option is to take
    you to the Juvenile Assessment Center for a violation of
    the terms of the intervention.

At that point, S.G. chose the JAC. And then she complied with
being taken into custody. In other words, she did not by her words

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or conduct resist, obstruct, or oppose the officer’s actions in
carrying out his legal duty of taking her into custody.

     What is more, S.G.’s choice of the JAC option, instead of
following the officer’s first advice to go with CHS, doesn’t support
the charges of resisting an officer without violence. To prove the
offense, the State was required to show that S.G. “resist[ed],
obstruct[ed] or oppose[d]” the officer’s execution of a legal duty or
process, not merely CHS’s shelter plan for the night. § 843.02, Fla.
Stat. Her decision not to follow CHS’s plan caused her to violate
the terms of her detention. But it didn’t constitute resisting the
officer, who wasn’t impeded in his work of taking her into custody
under § 985.101(1)(d).

    Because on these facts, the State could not prove that S.G.
committed the offense of resisting an officer without violence, the
motion for judgment of dismissal should have been granted.

                                III.

    Accordingly, we reverse the juvenile disposition order and
remand for dismissal.

    REVERSED and REMANDED.

WETHERELL and RAY, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Archie F. Gardner, Jr.,
Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.



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