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Pinkney v. State

Florida Court of Appeal, Second District

November 18, 2011

Emerson J. PINKNEY, Appellant,
v.
STATE of Florida, Appellee.

Page 573

James Marion Moorman, Public Defender, and Frederick W. Vollrath, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

EN BANC

KELLY, Judge.

Emerson J. Pinkney was charged with and convicted of aggravated assault on a law enforcement officer, resisting or obstructing an officer without violence, and fleeing or eluding a law enforcement officer at a high speed or with wanton disregard for the safety of persons or property. He appeals only his judgment and sentence for aggravated assault on a law enforcement officer. He challenges the denial of his motion for judgment of acquittal. Because the State produced sufficient evidence to permit a jury to find that Mr. Pinkney intentionally drove his car in a manner that put the officer in fear of imminent harm, we affirm. We write, however, to clarify the law on assault and to recede from our previous decision in State v. Shorette, 404 So.2d 816 (Fla. 2d DCA 1981), on which Mr. Pinkney relies.

The record shows that Mr. Pinkney's encounter with the police began around eleven o'clock in the morning when two officers sighted a parked Chevy Malibu that they believed matched the description of an automobile that was the subject of a BOLO. Officer Zammitt, the officer Mr. Pinkney was charged with assaulting, described his initial encounter with Mr. Pinkney as follows:

Q. Did you attempt to make contact with the passengers of the vehicle?

A. It was one black male in a red shirt and black pants who was getting into the passenger side of the vehicle when I ordered him down at gunpoint.

Q. Could you see how many other people where [sic] in the vehicle?
A. Yes, ma'am.
Q. And how many were there?
A. One.
Q. What happened when the passenger exited the vehicle; what happened after he left the vehicle?
A. I ordered him down on the ground. He began to get down on the ground when the reverse lights came on the Chevy Malibu.
Q. The reverse lights came on?
A. Yes, ma'am.
Q. And how far away were [you] from the car when the reverse lights came on?
A. Approximately five to ten feet.

Page 574

Q. What happened after the reverse lights of the Malibu came on?
A. He began to back up at a high rate of speed.
Q. Where were you located in relation to the vehicle when it began to back up?
A. I was standing not directly behind the vehicle. I was [off] to the right-hand side, and I was still holding the passenger at gunpoint. At that point the vehicle backed up and went directly right at me.
Q. Did you have to take any action to avoid being hit by the vehicle?
A. Yes, ma'am. Actually, I wouldn't say jump out of the way, I had to get out of the way in a hurry to avoid being struck.
Q. Did you feel like you were going to be struck by that car?
A. If I did not move, yes, absolutely.
Q. Were you afraid that that car was going to hit you?
A. Yes, ma'am.
Q. And you stated that when it began backing up, it went directly towards you?
A. Yes.

On cross-examination, the defense elicited the ...


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