Opinion
No. 90-2419.
August 22, 1991.
Appeal from the Circuit Court for Orange County; Thomas S. Kirk, Judge.
Robert A. Butterworth, Atty. Gen., Tallahassee, and David G. Mersch, Asst. Atty. Gen., Daytona Beach, for appellant.
H. Scott Gold, Orlando, for appellee.
The state appeals from an order granting C.E.'s motion to dismiss the juvenile delinquency petition filed against him. He was charged with riding a bicycle in violation of Orlando Municipal Ordinance, chapter 10, section 10.08. That ordinance prohibits persons from riding bicycles on the city streets without a bell or going. C.E. was also charged with resisting arrest without violence. Defense counsel moved to dismiss on the grounds that the ordinance was unconstitutional and that the stop was pretextual. The court ruled the ordinance was unconstitutional, relying on Powers v. State, CJAP89-95 (Sept. 25, 1990). We reverse.
Section 843.02, Fla. Stat. (1989).
In Thomas v. State, 583 So.2d 336 (Fla. 5th DCA 1991), this court recently upheld the constitutionality of this ordinance. In Thomas, we held that section 10.08 is a proper exercise of the city's police power, that it does not conflict with constitutional or statutory limitations, and that it is not preempted by other statutes. We also upheld the power of a police officer to arrest a person who violates the ordinance in his presence.
Section 901.15(1), Fla. Stat. (Supp. 1990).
Accordingly, we reverse the order dismissing the petition against C.E. We remand for further proceedings. On remand, the trial court may consider and take further evidence (if necessary) on the question of whether the stop was pretextual, since it did not reach that issue prior to dismissing the petition.
REVERSED and REMANDED.
COWART, J., concurs.
HARRIS, J., concurs specially with opinion.
I concur, as I must, because of our en banc decision of Thomas v. State cited by the majority. We remand to the trial court to take additional testimony in order to determine the undisposed issue of pretextual stop. I write because I believe there are additional issues that deserve further inquiry. A closer look at the facts is important.
The Orlando bicycle brigade has struck again. Officer Zwieg of the Orlando Police Department was driving in an unmarked vehicle (although in uniform) when he spotted C.E., a thirteen-year-old Black juvenile, riding a bicycle on the sidewalk with another Black youth on the handlebars. The bicycle was not equipped with a bell. Determined to make an "arrest," Zwieg made a U-turn and took up pursuit of the bicycle yelling "Stop!"
Some have suggested, perhaps facetiously, that the function of the second youth was to sit on the handlebars and shout "Honk! Honk!" when anyone ventured into the path of the bicycle.
C.E. abandoned the bicycle and fled into his nearby home. Zwieg, undaunted, made the arrest. The search must have been negative because C.E. was originally charged only with "riding a bicycle on a city street, to-wit: West Federal Street without a bell or gong." Considering the seriousness of the offense, the state attorney's office added the charge of resisting arrest without violence because the thirteen-year-old fled into his home.
On remand the trial court will consider the pretext issue. I urge the court to also consider whether C.E. was properly arrested in his home in light of Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) and whether riding a bicycle on a sidewalk is the legal equivalent of riding a bicycle "on a city street, to-wit: Federal Highway" as alleged in the charging document.