Livingston v. State

610 So. 2d 696 (1992)

Alfred LIVINGSTON, Appellant,
v.
The STATE of Florida, Appellee.

No. 92-838.

District Court of Appeal of Florida, Third District.

December 22, 1992.

Mark King Leban, Gisele Pollack, for appellant.

Robert A. Butterworth, Atty. Gen. and Giselle D. Lylen, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and BARKDULL and LEVY, JJ.

SCHWARTZ, Chief Judge.

Livingston was charged with resisting arrest with violence, but convicted by the jury of resisting without violence. We conclude that he must be discharged because the underlying arrest for disorderly conduct was illegally based solely upon the defendant's use of uncivil language which was protected by the first amendment. State v. Saunders, 339 So. 2d 641, 644 (Fla. 1976); K.Y.E. v. State, 557 So. 2d 956, 957 (Fla. 1st DCA 1990); Blake v. State, 433 So. 2d 611, 612 (Fla. 1st DCA 1983); Phillips v. State, 314 So. 2d 619, 620 (Fla. 4th DCA 1975). Since that is the case, the defendant was entitled to resist the arrest without violence as a matter of law. Licata v. State, 156 Fla. 692, 24 So. 2d 98 (1945); Lee v. State, 368 So. 2d 395, 396 (Fla. 3d DCA 1979), cert. denied, 378 So. 2d 349 (Fla. 1979). Accordingly, the judgment is reversed with directions to enter a judgment of acquittal.

Reversed.