ANTHONY V. NIEVES, DOC #T80602 Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Ronald
Ficarrotta, Judge, and J. Rogers Padgett, Senior Judge.
L. Dimmig, II, Public Defender, and Clark E. Green, Assistant
Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and Jonathan P. Hurley,
Assistant Attorney General, Tampa, for Appellee.
Nieves was out on probation when he was arrested on new
domestic violence charges. The trial court revoked his
probation after finding that he committed a new law violation
by resisting that arrest without violence. Mr. Nieves appeals
from the revocation order and resulting sentence. We reverse
because the police officers were not engaged in the lawful
execution of a legal duty when they arrested Mr. Nieves,
which is an essential element of the resisting offense. We
remand for further proceedings, noting that the trial court
did not pass on whether the alleged domestic violence
offense, which does not require proof that the police were in
the lawful execution of a legal duty, may establish a new law
violation justifying the revocation of probation.
legal questions in this case hinge on whether a warrantless
entry by the police into a motel room to arrest Mr. Nieves
violated the Fourth Amendment, thereby leaving the State
unable to establish that the police were in the lawful
execution of a legal duty when they arrested him. The key
facts are as follows.
pleading guilty to burglary of a dwelling and grand theft in
2013, Mr. Nieves was sentenced to five years in prison (with
credit for time served) and three years of probation. In
2017, while he was serving the probationary portion of his
sentence, Mr. Nieves was arrested on domestic battery
charges. The victim of the alleged battery was the mother of
his children. Mr. Nieves had a prior domestic violence
incident involving the same person and, as a result, was
subject to a court order prohibiting him from having contact
with her. After the arrest, the State filed an affidavit of
violation of probation alleging that Mr. Nieves had violated
condition five of his probation, which required that he
"live without violating any law," by committing
domestic battery and by resisting an officer without
hearing on the alleged probation violations, the arresting
officer testified that he and other officers were called to a
motel to respond to a domestic violence
incident. He spoke to the victim in the parking lot
and, based on that conversation, decided to arrest Mr. Nieves
for domestic battery. The officers went to a room in the
motel that Mr. Nieves shared with the victim. Although the
sequence of events is not entirely clear from the testimony,
there appears to have been an initial conversation among the
officers and Mr. Nieves through an open window, during which
the officers told him that he was going to be arrested for a
domestic battery. Mr. Nieves, however, refused to leave the
upping the ante, he barricaded himself in the motel room by
placing one of the beds behind the already-locked door. The
manager of the motel gave the police a key to the room, but
Mr. Nieves' ingenuity with the bed left them unable to
enter. One officer started to kick through the door. Some
others removed the screen from the open window, grabbed Mr.
Nieves, and pulled him through the window and out of the
room. He struggled as the police attempted to put him in
handcuffs, but they ultimately got him into custody.
the evidence was in, Mr. Nieves argued that it was
insufficient to prove that he committed the new law violation
of resisting arrest without violence because the evidence
showed that the police were not in the lawful execution of a
legal duty. He maintained that the police did not have an
arrest warrant and that no exigent circumstances justified a
warrantless entry into the motel room and, as a result, that
their grabbing him through the motel-room window was in
violation of the Fourth Amendment. The trial court rejected
that argument and found Mr. Nieves in violation of condition
five because he violated the law by resisting arrest without
violence. The trial court made no findings with respect to
the allegation in the State's affidavit that Mr. Nieves
also committed the new law violation of domestic battery.
This is Mr. Nieves' timely appeal.
appeal, Mr. Nieves argues that the trial court erred in
revoking his probation because the evidence failed to prove
one element of the resisting offense- that the police were
acting in "the lawful execution of any legal duty."
See § 843.02, Fla. Stat. (2017). To revoke a
defendant's probation, the trial court must find, by a
preponderance of the evidence, a willful and substantial
violation of one of the conditions of his probation.
Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA
2013). Where the alleged violation is of a condition
prohibiting new law violations, the question is whether a