328 So. 2d 570

Edwin Benjamin KAISER, Appellant, v. The STATE of Florida, Appellee.

No. 75-611.

District Court of Appeal of Florida, Third District.

March 2, 1976.

Ellis Rubin, Miami, and Richard Mor-gentaler, for appellant.

Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for ap-pellee.

Before PEARSON, HENDRY and HAVERFIELD, JJ.

PER CURIAM.

Defendant was charged with two counts of assault and battery, two counts of resisting an officer with violence to his person, one count of resisting an officer without violence to his person and obstructing a police officer. The jury found defendant guilty of one count of simple assault, obstructing an officer and one count of resisting an officer with violence to his person. The trial judge entered judgment in *571accordance with the jury verdicts, and sentenced the defendant to one year in the Dade County stockade. Defendant appeals the judgment of conviction.

The relevant facts are as follows: On December 28, 1974 the daughter and son-in-law of Mr. Erhlickman were unable to leave his home because defendant’s car was parked in front of the Erhlickman’s driveway and Mr. Erhlickman’s wife called the police. After their arrival, the defendant emerged from the next house and moved his automobile. Officer Petrie then questioned the defendant about what appeared to be newly incurred body damage to the front of his automobile. Unsatisfied with defendant’s response, the officer began to read to the defendant Miranda warnings. Defendant turned his back and began to walk away. Officer Petrie, his command to halt having been ignored by the defendant, came up behind defendant and placed a hand on his shoulder. At that point a scuffle ensued and the officer radioed for assistance. With the help of two other officers, the defendant was subdued and arrested.

Defendant urges as error the denial of his motion for directed verdict in that the State did not prove the officer, who was attempting to make the arrest without a warrant, had the lawful authority to make the arrest. We cannot agree.

We conclude Officer Petrie had the right to temporarily detain the defendant for further questioning to continue his investigation, and it did not matter that he did not have the authority to arrest defendant for a crime at that time. See Price v. State, Fla.App.1975, 318 So.2d 468, 471. His detention not being unreasonable, the defendant was not permitted to test the validity of being detained by the investigating officer by either turning his back on the officer and walking away or by engaging in physical combat with him, thus denying the officer the opportunity to continue his legal duty to investigate the cause of the fresh body damage to defendant’s vehicle. See Clarke v. State, Fla.App.1974, 303 So.2d 35 and Fla.Stat. § 843.01, F.S.A1; § 21-26 of the Code of Metropolitan Dade County.2

Affirmed.

Kaiser v. State
328 So. 2d 570

Case Details

Name
Kaiser v. State
Decision Date
Mar 2, 1976
Citations

328 So. 2d 570

Jurisdiction
Florida

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