3rd DCA Opinion Girardo

Third District Court of Appeal
State of Florida
Opinion filed May 1, 2024.

Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-1276
Lower Tribunal No. F19-8598
________________
Alejandro Giraldo,
Appellant,
vs.
The State of Florida,

Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ellen Sue
Venzer, Judge.
Daniel J. Tibbitt P.A., and Daniel J. Tibbitt, for appellant.
Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant

Attorney General, for appellee.
Before SCALES, GORDO and BOKOR, JJ.
BOKOR, J.
Alejandro Giraldo appeals his conviction for one count of official
misconduct and one count of battery, specifically the trial court’s denial of his
motions for judgment of acquittal. Because Giraldo did not knowingly or
intentionally falsify an official record or document, pursuant to section
838.022(1)(a), Florida Statutes, we reverse.1
The pertinent facts are undisputed. Giraldo was charged with one
count of official misconduct and one count of battery resulting from an
incident arising on March 5, 2019, in which Giraldo arrested Dyma Loving for
disorderly conduct and resisting an officer without violence. 2 In both the
arrest affidavit and offense incident report, Giraldo remarked:
[W]e were speaking with Ms. Dyma Loving,

defendant. During the conversation Ms. Loving
began acting belligerent and would not obey
commands. As we tried to keep the parties involved
separated, Ms. Loving became further upset, very
irate, and uncooperative. Ms. Loving began to
scream at us causing a scene in the residential
neighborhood. Ms. Loving was asked several times
to stop screaming and cooperate. Ms. Loving was
advised that the investigation was interrupted by her
screaming and disruptive behavior. Ms. Loving
1
We review the trial court's application of law to the facts of the case de
novo. Murphy v. State, 898 So. 2d 1031, 1033 (Fla. 5th DCA 2005) (citing
Phuagnong v. State, 714 So. 2d 527, 529 (Fla. 1st DCA 1998)).
2
On that day, Dyma Loving and her friend, Adriana Green, called the police
following an altercation with a neighbor. Giraldo arrived at the scene shortly
after the other police officers arrived. Following a tense interaction between
Giraldo and Loving, Giraldo arrested Loving.
2
continued screaming at the officers, would not obey
commands, and was arrested. . . . During the arrest,
Officer Giraldo grabbed her right arm to effect the
arrest and she violently pulled it away to defeat the
arrest.
At trial, the defense moved twice for judgment of acquittal, arguing the
State had failed to prove that Giraldo’s statements in the arrest affidavit and
offense incident report were false. The defense also moved for judgment of
acquittal on the battery count, asserting there was no evidence establishing
the arrest was illegal or not made during the performance of Giraldo’s duties
as a police officer. The trial court denied Giraldo’s motions for judgment of
acquittal. The jury found Giraldo guilty as charged, and the trial court
sentenced Giraldo to jail for 364 days, followed by 18 months of probation.
When ruling on a motion for judgment of acquittal, “the trial court must
determine whether the evidence adduced at trial, when viewed in a light most
favorable to the State, would allow a rational trier of fact to find ‘the existence
of the elements of the crime beyond a reasonable doubt.’” Perdomo v. State,
336 So. 3d 767, 768 (Fla. 3d DCA 2021) (quoting in part Bush v. State, 295
So. 3d 179, 201 (Fla. 2020)). “A court should grant a motion for judgment of
acquittal only if ‘the evidence is such that no view which the jury may lawfully
take of it favorable to the opposite party can be sustained under the law.’”
Joseph v. State, 65 So. 3d 587, 588 (Fla. 4th DCA 2011) (citation omitted).
3
To prove official misconduct, the State was required to show beyond a
reasonable doubt that Giraldo knowingly and intentionally falsified the arrest
affidavit and offense incident report.3 In other words, “to establish a prima
facie case of official misconduct, the State had to present evidence sufficient
to establish that [the defendant]: (1) was a public servant, (2) acted with
corrupt intent, (3) acted to obtain a benefit for any person, and (4) falsified
an official record or document.” Wasserstrom v. State, 21 So. 3d 55, 58 (Fla.
4th DCA 2009) (footnote omitted).
Here, we resolve the appeal by determining whether Giraldo’s
description in the arrest affidavit constitutes a knowing or intentional
falsification. Giraldo contends his statements do not illustrate any knowing
or intentional falsification; rather, at most, he claims he “painted with too
broad a brush when writing the narrative.” We agree. At trial, the State
3
The official misconduct statute states, in relevant part:
(1) It is unlawful for a public servant or public

contractor, to knowingly and intentionally obtain a
benefit for any person or to cause unlawful harm to
another, by:
(a) Falsifying, or causing another person to falsify,
any official record or official document[.]
§ 838.022(1)(a), Fla. Stat.
4
played footage from several officers’ body cameras, each displaying different
vantage points illustrating Loving and Giraldo’s interaction with one another.
Giraldo’s subjective account of the events depicted doesn’t rise to the level
of knowing or intentional falsification. No one argues Giraldo falsified
objective, concrete facts. For example, he didn’t say it was a residential
neighborhood when it was something else, like a busy commercial district or
an empty country road with no houses around. He didn’t say Loving was
causing a scene when she was standing still and speaking in a whisper.
Rather, the objectionable language in the arrest affidavit and offense incident
report pertains to Giraldo’s describing the interaction, that is, Giraldo’s
perception of the events pertaining to and surrounding Loving’s arrest.
Loving was clearly upset and speaking loudly. Her friend tried to calm her
down, as did at least one other officer. Whether the loud and argumentative
tone and her other actions constituted “causing a scene” and “disruptive
behavior” is a matter of degree and perception. Upon a review of the
footage, Giraldo’s description isn’t patently false or inaccurate. Cf. Harnum
v. State, 384 So. 2d 1320, 1321–22 (Fla. 2d DCA 1980) (concluding the
evidence was sufficient to support a finding that the appellant falsified
records when he caused the records of a DUI suspect to be altered to show
a breathalyzer reading of .13 rather than .30); Barr v. State, 507 So. 2d 175,
5
176 (Fla. 3d DCA 1987) (acknowledging an officer falsified a police report
when he wrote he had discovered a gun case in the back seat of his patrol
car after transporting a suspect to the police station, when in fact it was
discovered the next day by another officer).
Unlike the aforementioned cases, here, the State attempts to
criminalize a whole new category of statements relying on subjective
opinions and perceptions, as opposed to objective falsehoods. Because
Giraldo’s subjective interpretation wasn’t clearly refuted by objective facts, it
didn’t—and couldn’t—rise to the level of intentional falsification pursuant to
section 838.022(1)(a), Florida Statutes. Therefore, the trial court erred in
denying Giraldo’s motions for judgment of acquittal. The State conceded at
oral argument that if the motion for judgment of acquittal on the official
misconduct count should have been granted, it should have not proceeded
with the battery count, as the arrest would have been lawfully made. 4 We
therefore reverse the final judgment of conviction and sentence and remand
for entry of judgment of acquittal on both counts.
4
As noted during oral argument, Giraldo’s interaction with Loving was not a
model interaction. We are tasked, however, not with determining whether
the arrest was a result of best practices, but rather whether Giraldo
committed a crime during the arrest and subsequent completion of the arrest
affidavit and offense incident report.
6
Reversed and remanded.

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Third District Court of Appeal

Opinion filed May 1, 2024.

The State of Florida,

Daniel J. Tibbitt P.A., and Daniel J. Tibbitt, for appellant.

Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant

Before SCALES, GORDO and BOKOR, JJ.

motions for judgment of acquittal. Because Giraldo did not knowingly or

intentionally falsify an official record or document, pursuant to section

838.022(1)(a), Florida Statutes, we reverse.1

count of official misconduct and one count of battery resulting from an

disorderly conduct and resisting an officer without violence. 2 In both the

arrest affidavit and offense incident report, Giraldo remarked:

[W]e were speaking with Ms. Dyma Loving,

acquittal on the battery count, asserting there was no evidence establishing

sentenced Giraldo to jail for 364 days, followed by 18 months of probation.

of the elements of the crime beyond a reasonable doubt.’” Perdomo v. State,

an official record or document.” Wasserstrom v. State, 21 So. 3d 55, 58 (Fla.

4th DCA 2009) (footnote omitted).

Here, we resolve the appeal by determining whether Giraldo’s

description in the arrest affidavit constitutes a knowing or intentional

falsification. Giraldo contends his statements do not illustrate any knowing

or intentional falsification; rather, at most, he claims he “painted with too

(1) It is unlawful for a public servant or public

§ 838.022(1)(a), Fla. Stat.

of knowing or intentional falsification. No one argues Giraldo falsified

objective, concrete facts. For example, he didn’t say it was a residential

neighborhood when it was something else, like a busy commercial district or

report pertains to Giraldo’s describing the interaction, that is, Giraldo’s

perception of the events pertaining to and surrounding Loving’s arrest.

behavior” is a matter of degree and perception. Upon a review of the

footage, Giraldo’s description isn’t patently false or inaccurate. Cf. Harnum

evidence was sufficient to support a finding that the appellant falsified

records when he caused the records of a DUI suspect to be altered to show

discovered the next day by another officer).

Unlike the aforementioned cases, here, the State attempts to

criminalize a whole new category of statements relying on subjective

opinions and perceptions, as opposed to objective falsehoods. Because

Giraldo’s subjective interpretation wasn’t clearly refuted by objective facts, it

didn’t—and couldn’t—rise to the level of intentional falsification pursuant to

section 838.022(1)(a), Florida Statutes. Therefore, the trial court erred in

denying Giraldo’s motions for judgment of acquittal. The State conceded at

for entry of judgment of acquittal on both counts.

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