Case No. MM00-10446A-XX
Appeal No.: DD-20
BARBARA J. DAVIS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_______________________
OPINION OF THE COURT
This matter is an appeal from the county court of Polk County, Judge Ellen S. Masters presiding. The Appellant, Barbara Davis, was convicted of disorderly conduct and resisting an officer without violence, and was sentenced to 15 days county jail on each count to be served concurrent. Appellant was also placed on 12 months probation on the disorderly conduct count, and 6 months probation on the resisting an officer count, concurrent to the 12-month sentence. Appellant seeks review of the judgment and sentence. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the trial court is AFFIRMED in part and REMANDED in part.
I.
On November 12, 2000, Officer Aaron Peterman of the Lakeland Police Department was dispatched to Publix Supermarket on Harden Boulevard in response to a call about an unresponsive female inside the store. According to the store manager, Appellant was wandering inside the store and appeared to be incoherent. When Peterman approached Appellant, she was slumped down in a chair near the entrance/exit and spitting a clear liquid from her mouth. Peterman asked Appellant if she was okay, to which she mumbled something he couldn’t understand. Peterman then asked if she needed an ambulance and Appellant responded in the affirmative. After radioing for an ambulance, Peterman asked Appellant her name but could not understand her answer. Then, Peterman attempted to wake Appellant up by shaking her leg, but she was still unresponsive. At this point, Peterman tapped on Appellant’s foot with his leg and instructed her to stay awake and talk to him. Appellant jumped up and yelled, "Don’t fuckin’ kick me." Peterman and the store manager both tried to calm Appellant down, to whom Appellant responded, "He don’t fuckin’ kick me." Appellant started to leave the store and Peterman followed her outside. In the presence of several bystanders, Appellant walked toward Peterman, pointed her finger at him and angrily shouted, "You don’t fuckin’ kick me." At this point, Peterman grabbed Appellant by the arm and ordered her to place her hand behind her back. After Appellant resisted, Peterman forced her to the ground and arrested her. Because he thought that Appellant asked to speak to a supervising officer about allegedly being kicked, Peterman radioed Sergeant Spencer for backup.
When an ambulance arrived to examine Appellant, she acted hostile, cursed at the EMS technicians and refused medical treatment. After EMS left, Sergeant Spencer and Officer Cochran arrived on the scene. Peterman apprised Spencer of the incident and Spencer asked Appellant what the problem was. Appellant implied that Peterman was a racist and did not want to ride with him. Appellant agreed to ride with Cochran but when she was asked to sit in the car she refused. Sergeant Spencer then sprayed her with chemical spray in order to subdue her. Appellant sat down in the car and Officer Cochran transported her to jail. At trial, defense counsel motioned the court for a judgment of acquittal, arguing that Appellant was exercising her constitutionally protected right to challenge the conduct of Officer Peterman. The motion was denied and the county court adjudicated Appellant guilty. Appellant seeks review of the denial of this motion as well as the partial denial of the motion to correct sentencing error.
II.
Florida Rule of Criminal Procedure 3.380 governs motions for judgment of acquittal and states in relevant part as follows:
(a) If, at the close of the evidence for the State or at the close of all the evidence in the cause, the court is of the opinion that the evidence is insufficient to warrant a conviction, it may, and on the motion of the prosecuting attorney or the defendant, shall, enter a judgment of acquittal.
(b) A motion for judgment of acquittal is not waived by subsequent introduction of evidence on behalf of the defendant, but after introduction of evidence by the defendant, the motion for judgment of acquittal must be renewed at the close of all the evidence. Such motion must fully set forth the grounds upon which it is based.
A motion for judgment of acquittal should only be granted if there is no view of the evidence from which a jury could make a finding contrary to that of the moving party. Jeffries v. State, 797 So.2d 573 (Fla. 2001). Judgment of acquittal is not proper when state has produced competent evidence to support every element of crime. Miller v. State, 636 So.2d 144 (Fla. 1st DCA 1994).
The disorderly conduct statute, §877.03 Florida Statutes (2001), provides that:
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 conduct, shall be guilty....
III.
The Court finds that there is substantial, competent evidence to support the lower court’s denial of the motion for judgment of acquittal. Given the totality of the circumstances, it is apparent that the Appellant’s conduct arose to the level of disorderly conduct and not just annoying behavior as argued by counsel. Appellant’s hostile, belligerent behavior towards the police officer and the store manager in the presence of various bystanders in a public area amounted to disturbing the peace and the Court finds that her actions were not constitutionally protected. Further, since the Court finds that Appellant’s arrest was legal, the trial court did not err in adjudicating Appellant guilty of resisting an officer without violence.
IV.
Next, the Appellant argues that the lower court erred in partially denying the motion to correct sentencing error after committing several sentencing errors at trial.
Order of Costs
Appellant contends that the court should have itemized the court costs and fines along with the corresponding statutory authority. However, the trial court is not obligated to announce orally the dollar amount of these costs or to separately identify the legal basis for these costs at the sentencing hearing. It is the better practice for the trial court to orally announce that it is imposing "all mandatory costs," even though technically a defendant is on notice that all applicable mandatory costs will be imposed by virtue of the rendition of judgment and the pronouncement of sentence. Reyes v. State, 655 So.2d 111, 116 (Fla. 2nd DCA 1995). Therefore, the trial court did not err in imposing costs and fines.
Condition of Probation (8)
Appellant alleges that the portion of probation condition (8) that requires her to pay for random testing for alcohol and controlled substances should be stricken because it is a special condition of probation, which was not orally pronounced. Jennison v. State, 696 So.2d 793 (Fla. 2nd DCA 1997). A review of the transcripts shows that it is ambiguous as to whether the trial judge actually ruled on the issue at the hearing on the motion to correct sentencing error. Thus, the matter is remanded to the trial judge for clarification on this matter.
$80.00 Witness Subpoena Fee
Appellant asserts the $80 fee listed on the sentencing memo should be stricken because there was no citation to statutory authority and the required request and supporting documentation was not provided by the law enforcement agency. Vickers v. State, 677 So.2d 974 (Fla. 2nd DCA 1996). Moreover, the court is obligated to consider the defendant’s financial resources and other factors in making the decision to assess the costs. Reyes at 119. Therefore, the matter is remanded to the trial judge for resentencing. On remand, an appropriate agency may seek costs if it complies with the procedures described in section §939.01 Florida Statutes (2001).
Accordingly, the Court REMANDS for correction of the above-mentioned sentencing errors and AFFIRMS in all other respects.
ORDERED June 2002.
CHARLES B. CURRY, Chief Judge