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Nieves v. State

Florida Court of Appeals, Second District

August 2, 2019

ANTHONY V. NIEVES, DOC #T80602 Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Hillsborough County; Ronald Ficarrotta, Judge, and J. Rogers Padgett, Senior Judge.

          Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

          SALARIO, JUDGE.

         Anthony 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.

         I.

         The 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.

         After 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 violence.

         At the 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.[1] 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 motel room.

         Instead, 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.

         After 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.

         II.

         On 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 ...


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