PERRY vs. STATE OF FLORIDA
Court review Perry v. State, 846 So. 2d 584 (Fla. 4th DCA 2003), in which the Fourth District Court of Appeal followed Tillman v. State, 807 So. 2d 106 (Fla. 5th DCA 2002), quashed, 934 So. 2d 1263 (Fla. 2006), which was pending review in our Court, and cited as contrary authority Taylor v. State, 740 So. 2d 89 (Fla. 1st DCA 1999). Court have jurisdiction. See art. V, S 3(b)(3), Fla. Const.; Jollie v. State, 405 So. 2d 418, 420 (Fla. 1981). The issue is whether section 776.051(1), Florida Statutes (1997), which prohibits the use of force to resist an arrest, applies apart from arrest scenarios.
Court quash the Fourth District's decision because it is contrary to our construction of section 776.051(1) in Tillman. The Fourth District relied on the Fifth District's decision in Tillman, which we later quashed, for the proposition that the use of force against a known police officer extends to illegal stops, searches, and detentions. See Perry, 846 So. 2d at 587. Court expressly rejected this view in Tillman, and cannot permit the same erroneous interpretation of section 776.051(1) to stand here. However, we decline to decide whether an arrest under section 776.051(1) encompasses post-arrest intake procedures such as the strip search in this case. Neither the Fourth District in this case nor this Court in Tillman addressed this issue. This matter, as well as a separate jury instruction issue raised by Perry, are for the Fourth District to address in the first instance under the changed legal landscape of our decision in Tillman.
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