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Fleury v. State

Florida Court of Appeals, Fourth District

May 2, 2018

EDMOND ST. FLEURY, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Edward H. Merrigan Jr., Judge; L.T. Case No. 16-3689 CF10A.

          Carey Haughwout, Public Defender, and Brad R. Schlesinger, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.

          Levine, J.

         The issue for our consideration is whether the evidence presented at trial was sufficient to support a conviction for disorderly conduct. We find that because the state failed to prove that appellant posed an imminent danger to others or that appellant's words incited others to breach the peace, the trial court erred when it denied appellant's motion for judgment of acquittal on his disorderly conduct charge. Accordingly, we reverse appellant's conviction for that charge.[1]

         Appellant went to a pet store to purchase a pet lizard. A store employee began questioning appellant about whether he would be able to take care of the lizard. The store manager then came over to tell appellant that the store would not be selling him the lizard because the manager did not think he would be able to take care of it.

         Upon hearing this, appellant began to loudly demand that the manager sell him the lizard. His argument with the manager caused patrons of the store to stop and stare. Others simply left the store. At this point, the manager asked appellant to leave, but appellant refused. The manager then called the police.

         Two deputies from the Broward Sheriff's Office were the first to respond. Appellant told them that he did not want to leave the store because he wanted to buy the particular lizard he had been considering. One of the deputies asked appellant to produce his identification. Appellant did not cooperate and explained that his license was in his car. Appellant became boisterous and began cursing at the deputies, who repeatedly told him to calm down. Around this time, two more deputies arrived and instructed the remaining customers in the store to exit the premises. At no time did appellant threaten violence against any of the customers or the officers.

         Appellant was then informed that he was being placed under arrest for disorderly conduct because he was being loud and boisterous. One of the deputies attempted to handcuff appellant while another tried to grab his arm. Appellant started to thrash back and forth and then punched one of the deputies in the chest. Eventually, the officers were able to tase and handcuff appellant. Appellant was arrested and charged with disorderly conduct and resisting a law enforcement officer with violence.

         At trial, after the state rested its case, appellant moved for judgment of acquittal on the disorderly conduct charge, arguing that the state had failed to prove the elements of disorderly conduct. The trial court denied the motion. The jury found appellant guilty. Appellant appeals his conviction and sentence for disorderly conduct.

         We review de novo the denial of a motion for judgment of acquittal. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002).

         Section 877.03, Florida Statutes (2016), which criminalizes disorderly conduct, provides:

Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly ...

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