Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978). · Go Syfert
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Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978). Cases Citing This Book View Copy Cite
44 citation events (6 in the last 25 years) across 3 distinct courts.
Strongest positive: Marlene Whittier v. City of Sunrise (ca11, 2010-09-14)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 13 distinct citers.
cited Cited as authority (rule) Marlene Whittier v. City of Sunrise
11th Cir. · 2010 · confidence medium
Lowery v. State, 356 So.2d 1325, 1326 (Fla. 4th DCA 1978).
cited Cited as authority (rule) Tillman v. State
Fla. · 2006 · confidence medium
State v. Saunders, 339 So.2d 641 , 642 n. 2 (Fla. 1976); Morley v. State, 362 So.2d 1013, 1014 (Fla. 1st DCA 1978); Lowery v. State, 356 So.2d 1325, 1325-26 (Fla. 4th DCA 1978).
cited Cited as authority (rule) Perry v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
In Lowery v. State, 356 So.2d 1325, 1326 (Fla. 4th DCA 1978), we held that the use of force to resist an arrest is unlawful, notwithstanding the technical illegality of the arrest.
discussed Cited as authority (rule) Silas v. State
Fla. Dist. Ct. App. · 1986 · confidence medium
The state cites a line of decisions that have held that “use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest.” Lowery v. State, 356 So.2d 1325, 1326 (Fla. 4th DCA 1978).
discussed Cited as authority (rule) Shannon v. State
Fla. Dist. Ct. App. · 1985 · confidence medium
To aid the court on retrial we note that in Lowery v. State, 356 So.2d 1325, 1326 (Fla. 4th DCA 1978), we held that “the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest.” See also State v. Gilchrist, 458 So.2d 1200 (Fla. 5th DCA 1984); State v. Barnard, 405 So.2d 210 (Fla. 5th DCA 1981).
discussed Cited as authority (rule) State v. Gilchrist
Fla. Dist. Ct. App. · 1984 · confidence medium
In State v. Barnard, 405 So.2d 210 (Fla. 5th DCA 1981), we said that the "use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest." Id. (quoting Lowery v. State, 356 So.2d 1325, 1326 (Fla. 4th DCA 1978)).
discussed Cited as authority (rule) Ivester v. State
Fla. Dist. Ct. App. · 1981 · confidence medium
Section 776.051(1), Florida Statutes, states that "(1) A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer." In Lowery v. State, *930 356 So.2d 1325, 1326 (Fla. 4th DCA 1978), the court read Section 843.01, Florida Statutes, in pari materia with Section 776.051(1), Florida Statutes (1974).
cited Cited "see" Williams v. State
Fla. Dist. Ct. App. · 1982 · signal: see · confidence high
See Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978). .
cited Cited "see" Meeks v. State
Fla. Dist. Ct. App. · 1979 · signal: see · confidence high
See Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978).
cited Cited "see" Lee v. State
Fla. Dist. Ct. App. · 1979 · signal: see · confidence high
See Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978); and Adlington v. State, 350 So.2d 1148 (Fla.3d DCA 1977).
discussed Cited "see, e.g." LU JING v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2021 · signal: see also · confidence low
Importantly, “a person retains a right [at common law] to resist an 6 unlawful arrest . . . without force.” Sinquefield v. State, 1 So. 3d 370 , 372 n.2 (Fla. 2d DCA 2009); see also Lowery v. State, 356 So. 2d 1325 , 1325– 26 (Fla. 4th DCA 1978).
discussed Cited "see, e.g." Jay v. State
Fla. Dist. Ct. App. · 1999 · signal: see also · confidence medium
"If an arrest is not lawful, then a defendant cannot be guilty of resisting it." In re T.M.M., 560 So.2d at 807 (citing Dean v. State, 466 So.2d 1216, 1217 (Fla. 4th DCA 1985)). "[T]he common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence." K.Y.E. v. State, 557 So.2d 956, 957 (Fla. 1st DCA 1990)(citing Smith v. State, 399 So.2d 70 (Fla. 5th DCA 1981)); see also Lowery v. State, 356 So.2d 1325, 1325-26 (Fla. 4th DCA 1978).
cited Cited "see, e.g." Blake v. State
Fla. Dist. Ct. App. · 1983 · signal: see also · confidence low
See also Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978).
William Charles LOWERY, Appellant,
v.
STATE of Florida, Appellee.
77-1303.
District Court of Appeal of Florida, Fourth District.
Apr 4, 1978.
356 So. 2d 1325
Alderman.
Cited by 36 opinions  |  Published

Steadman S. Stahl, Jr., of Varon, Stahl, Kay & Roderman, Hollywood, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler and Paul H. Zacks, Asst. Attys. Gen., West Palm Beach, for appellee.

ALDERMAN, Chief Judge.

This is an appeal from a conviction for resisting arrest with violence, contrary to Section 843.01, Florida Statutes (1975). The determinative issue is whether the defendant had the right to forcefully resist an allegedly unlawful arrest[1] by a law enforcement officer. We hold that he did not and affirm.

Defendant has gone to great lengths to demonstrate that his warrantless arrest was not lawful because: (1) the misdemeanor for which he was arrested was not committed in the officer's presence; and (2) the arresting officer was outside of his jurisdiction. This argument misses the point. It matters not whether the arrest was lawful or unlawful because in this case the defendant resisted arrest with violence.

Had defendant resisted arrest without violence, then the legality of his arrest would be a factor since in Florida, the common-law rule that one can resist without[*1326] violence an unlawful arrest remains in effect. Marshall v. State, 354 So.2d 107 (Fla. 2d DCA 1978). Until recently, Florida law even permitted the use of force to resist an unlawful arrest. E.g. State v. Saunders, 339 So.2d 641, 642, n. 2 (Fla. 1976). However, in 1974 the legislature modified the common-law rule by enacting Section 776.051, Florida Statutes (1975) (effective July 1, 1975). This statute provides that a person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.

Thus, after July 1, 1975, Section 843.01 must be read in pari materia with Section 776.051; the end result being that the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest. Marshall, supra; K.G. v. State, 338 So.2d 72 (Fla. 3d DCA 1976). And since it has not been alleged that the officer in this case used unlawful force in effectuating the arrest, it has not been necessary for us to consider the question of a defendant's right to use force in defense of his person under Section 776.012.

The incident giving rise to the charge of resisting arrest with violence occurred on October 17, 1976, well after the effective date of Section 776.051. Therefore, defendant's reliance on case law applying the old common-law rule is misplaced. Under our present law, except for passive nonviolent resistance, the place to contest the legality of an arrest is in court and not on the streets. The defendant had no right to resist arrest by the use of force.

AFFIRMED.

LETTS and MOORE, JJ., concur.

1 In deciding this case it is not necessary for us to actually determine the legality or illegality of the arrest.