ROBERT LEE MCABEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that there is no separate crime for attempted resisting arrest with violence because the statutory definition of the crime inherently includes an attempt.
Appellant was charged with resisting arrest with violence and found guilty of attempted resisting arrest with violence. He argued on appeal that no su…
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DANAHY, Judge.
Robert Lee McAbee argues that his conviction for attempted resisting arrest with violence is void because there is no such crime in this state. We agree and reverse.
Appellant was charged with resisting arrest with violence in violation of section 843.01, Florida Statutes (1979), and subsequently found guilty of attempted resisting arrest with violence. Section 843.01 provides:
Whoever knowingly and willfully resists, obstructs, or opposes any . . . municipal police officer ... in the lawful execution of any legal duty, by offering or doing violence to the person of such officer ... is guilty of a felony of the third degree .... (Emphasis supplied.)
We believe that the legislature’s use of the word “offering” in this statute is equivalent to the use of the word “attempting.” See Black’s Law Dictionary 1233 (4th ed. 1951). When the definition of the major offense charged includes the attempt to commit that act, there can be no separate crime of attempt. Miles v. State, 374 So. 2d 1167 (Fla.2d DCA 1979), and State v. Thomas, 362 So. 2d 1348 (Fla.1978).
Although at trial appellant failed to object to the instruction and charge given on attempted resisting arrest with violence, he is nonetheless entitled to raise his point on appeal because it constitutes “fundamental error.” Fundamental error is defined as error which goes to the foundation of the case or goes to the merits of the cause of action. Vogel v. State, 365 So. 2d 1079 (Fla. 1st DCA 1979). That doctrine applies to the case at bar because there is no such crime as attempted resisting arrest with violence.
Accordingly, we vacate the judgment and sentence, and direct that McAbee be discharged.
SCHEB, C. J., and RYDER, J., concur.
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State v. Sykes, 434 So. 2d 325 (Fla. 1983)…1), on quest, certified, 598 F. 2d 982 (5th Cir.1979); Pagano v. State, 387 So. 2d 349 (Fla.1980); Milazzo v. State, 377 So. 2d 1161 (Fla.1979); King v. State, 339 So. 2d 172 (Fla.1976), affirming 317 So. 2d 852 (Fla. 1st DCA 1975); McAbee v. State, 391 So. 2d 373 (Fla. 2d DCA 1980); Silvestri v. State, 332 So. 2d 351 (Fla. 4th DCA), approved, 340 So. 2d 928 (Fla.1976). By defining the crimes of theft and grand theft of the first and second degrees so that one of the ways they may be proved is by showing tha…
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Ervin v. State, 410 So. 2d 510 (Fla. 2d DCA 1981)…s to make an attempt to do it. When the definition of the major offense charged includes the attempt to commit that act, there can be no separate crime of attempt. State v. Thomas, 362 So. 2d 1348 (Fla.1978); Miles v. State, supra; McAbee v. State, 391 So. 2d 373 (Fla. 2d DCA 1980). Although at trial appellant failed to object to the instruction on attempted dealing in stolen property, he is nonetheless entitled to raise the issue on appeal because it constitutes fundamental error. Fundamental error is defi…
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Keel v. State, 438 So. 2d 850 (Fla. 1st DCA 1983)…section 812.019, Florida Statutes, which pertains to dealing in stolen property; Hestor v. State, 363 So. 2d 26 (Fla. 4th DCA 1978), in which section 918.14, Florida Statutes, relating to tampering with evidence, was considered; and McAbee v. State, 391 So. 2d 373 (Fla. 2d DCA 1980) involving section 843.01, Florida Statutes, the statute involving resisting an officer with violence. We agree with appellant that the language of the statutes involved in those cases is similar to the language of section 944.40,…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Thomas, 362 So. 2d 1348 (Fla. 1978)
- Miles v. State, 374 So. 2d 1167 (Fla. 2d DCA 1979)
- Vogel v. State, 365 So. 2d 1079 (Fla. 1st DCA 1979)