RODNEY POLITE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Polite was convicted of battery, throwing a missile at an occupied vehicle, and attempted resisting an officer with violence. The court reversed the conviction for attempted resisting an officer with violence because no such offense exists under Florida law, but affirmed the other convictions, holding that battery and throwing a missile at an occupied vehicle can be based on a single act when the mental elements are not mutually exclusive.
Attempted resisting an officer with violence is not a valid offense because Florida Statutes § 843.01 proscribes offering to do the prohibited act, making attempt a part of the crime itself rather than a lesser included offense. Battery and throwing a missile at an occupied vehicle can both be predicated on a single act because the mental elements required are not mutually exclusive; the wanton or malicious requirement of § 790.19 does not require malevolence toward the vehicle itself but can be satisfied by malevolence directed toward an individual within the vehicle.
[1] There is no such offense as attempted resisting an officer with violence under Florida law.
[2] It is reversible error to convict a defendant of a non-existent offense, even if the issue is not raised at trial.
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Join FLexlaw to unlock all legal intelligence“since § 843.01 proscribes offering to do the prohibited act, the attempt is therefore a part of the crime and there is no lesser included offense of attempted resisting an officer with violence”
Establishes that attempted resisting with violence is not a valid separate offense under Florida law
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Join FLexlaw to unlock all legal intelligencePolite was charged with resisting an officer with violence, aggravated battery, and throwing a missile at an occupied vehicle. The jury acquitted him …
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WENTWORTH, Judge.
Appellant seeks review of judgments of conviction and sentences for various offenses including battery, throwing a missile at an occupied vehicle, and attempted resisting an officer with violence. Since there is no such offense under the laws of Florida, we reverse the judgment and sentence for attempted resisting an officer with violence. Appellant having presented no other point of reversible error,1 we otherwise affirm the judgments and sentences appealed.
Appellant was tried on various charges including resisting an officer with violence in violation of § 843.01, Florida Statutes. The jury returned a verdict of not guilty as to the charged offense, but found appellant guilty of attempted resisting an officer with violence. As delineated in Plummer v. State, 455 So. 2d 550 (Fla. 1st DCA 1984), since § 843.01 proscribes offering to do the prohibited act, the attempt is therefore a part of the crime and there is no lesser included offense of attempted resisting an officer with violence. Accord, Jordan v. State, 438 So. 2d 825 (Fla.1983). It is reversible error to convict a defendant of such non-existent offense, even where, as here, the issue is not raised at trial. Plummer, supra; see also, State v. Sykes, 434 So. 2d 325 (Fla.1983).
Appellant was also tried on charges of aggravated battery and throwing a missile at an occupied vehicle. The jury returned a verdict of not guilty as to the aggravated battery charge, but found appellant guilty of the lesser offense of simple battery. The jury also found appellant guilty of the charged offense of throwing a missile at an occupied vehicle. Both offenses were predicated upon appellant’s single act of hurling a brick which passed through the window of an automobile and struck an individual seated therein. Section 790.19, Florida Statutes, which prohibits throwing a missile at, within, or in an occupied vehicle, expressly requires that the prohibited act be done “wantonly or maliciously.” Relying on Golden v. State, 120 So. 2d 651 (Fla.lst DCA 1960), appellant argues that this requirement, and the specific intent necessary to establish a battery under § 784.03, Florida Statutes, are mutually exclusive elements such that both statutes may not be violated by a single act.
In Johnson v. State, 436 So. 2d 248 (Fla.5th DCA 1983) (Cowart concurring), it was indicated that § 790.19 might apply to one who acts “with reckless disregard of the potential deadly consequences,” and that:
The words ‘wantonly or maliciously’ relate to a mental element and describe the condition or attitude of mind which must accompany the prohibited act. But the statute does not require that the defendant’s malevolent attitude be that of a specific intent ... to harm the object involved.
As so construed, § 790.19 might thus be violated by one who has no malevolence toward a vehicle or structure itself, but acts with a wanton or malicious attitude directed toward an individual within or near the vehicle or structure. See also Skinner v. State, 450 So. 2d 595 (Fla.5th DCA 1984), petition for review filed, Case No. 65,510; see generally, Ballard v. State, 447 So. 2d 1040 (Fla.2d DCA 1984).
In the circumstances of the present case appellant’s convictions for both battery and throwing a missile at an occupied vehicle could therefore be predicated on the single act of hurling a brick which struck an individual within the vehicle. The mental elements which the offenses require are not in all instances mutually exclusive, and furthermore in the present case the evidence is such as to permit a conclusion that appellant intended his single act to effect damage and injury to both the vehicle and the individual therein. To the extent that Golden, supra, may suggest a result contrary to that reached in this case, we hereby recede therefrom and adopt the rationale expressed in Johnson.
The judgment of conviction and sentence for attempted resisting an officer with violence is hereby reversed, the various other judgments and sentences appealed are affirmed, and the cause is remanded2 for further proceedings.
SMITH and WIGGINTON, JJ., concur. . Other issues raised in this appeal are addressed in Carwise v. State, 454 So. 2d 707 (Fla. 1st DCA 1984).
. On remand appellant may again be tried upon the charge of resisting an officer with violence. See Jordan, supra; cf., Sykes, supra.
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State v. Kettell, 980 So. 2d 1061 (Fla. 2008)…the building itself need not be the target of the shooting. A defendant’s contention that he had aimed at a person in or near a building is not a defense. In response to these decisions, the First District receded from Golden. See Polite v. State, 454 So. 2d 769, 771 (Fla. 1st DCA 1984) (receding from Golden and “adopt[ing] the rationale expressed in Johnson ”); Carter v. State, 469 So. 2d 775, 778 (Fla. 1st DCA 1984) (recognizing that Polite receded from Golden). 2. Holtsclaw Eliminated the Statute’s Inte…
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Carter v. State, 469 So. 2d 775 (Fla. 1st DCA 1984)…arget. We hold that Section 790.19 should not, and need not, be interpreted to reverse a conviction under that statute because of evidence that defendant aimed a missile at, and intended to hit, the guard. This view is supported by Polite v. State, 454 So. 2d 769, 771 (Fla. 1st DCA 1984), wherein this Court receded from Golden v. State, supra, in a case involving a conviction under the same statute, Section 790.19, for the offense of throwing a missile at an occupied vehicle, holding: In the circumstances o…1 / 2
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Berry v. State, 547 So. 2d 969 (Fla. 3d DCA 1989)…view denied, 402 So. 2d 613 (Fla.1981). As for Berry’s conviction for shooting within an occupied dwelling, the record demonstrates that Berry acted wantonly when he pulled the trigger without determining whether the gun was loaded. Polite v. State, 454 So. 2d 769 (Fla. 1st DCA 1984); Johnson v. State, 436 So. 2d 248 (Fla. 5th DCA 1983). Finally, Berry contends that the trial court erred in failing to suppress all statements he made to the police subsequent to the suppressed statement. We reject this content…
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. Sykes, 434 So. 2d 325 (Fla. 1983)
- Luke v. Morrison Food Servs., Inc., 120 So. 2d 651 (Fla. 2d DCA 1960)
- Louie L. Wainwright v. Potts, 438 So. 2d 825 (Fla. 1983)
- Carwise v. State, 454 So. 2d 707 (Fla. 1st DCA 1984)
- Ballard v. State, 447 So. 2d 1040 (Fla. 2d DCA 1984)
- Irwin v. State, 450 So. 2d 595 (Fla. 4th DCA 1984)
- Skinner v. State, 450 So. 2d 595 (Fla. 5th DCA 1984)
- Isaiah Eugene Johnson v. State, 436 So. 2d 248 (Fla. 5th DCA 1983)
- Plummer v. State, 455 So. 2d 550 (Fla. 1st DCA 1984)