WADE LEE PLUMMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that there is no offense of attempted resisting an officer with violence under Florida law, and a conviction for such a nonexistent offense is reversible error.
Appellant was charged with resisting an officer with violence, but the jury found him guilty of the nonexistent offense of attempted resisting an offi…
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WENTWORTH, Judge.
Appellant seeks review of judgments of conviction and sentences for various offenses including 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. However, § 843.01 proscribes offering to do the prohibited act, the attempt is therefore a part of the crime. See Jordan v. State, 438 So. 2d 825 (Fla.1983). There is thus no lesser included offense of attempted resisting an officer with violence, and conviction of a defendant of such nonexistent offense is reversible error. Jordan, supra. This result obtains even where, as here, the issue is not raised at trial. See State v. Sykes, 434 So. 2d 325 (Fla.1983).
The judgments and sentences appealed are otherwise affirmed; the judgment of conviction and sentence for attempted resisting an officer with violence is hereby reversed, 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.
Cases With Similar Vibessemantic neighbors from the corpus
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Brown v. State, 550 So. 2d 142 (Fla. 1st DCA 1989)…ule of Criminal Procedure 3.390(d). A defendant’s conviction for a nonexistent offense1 is reversi [*143] ble, fundamental error, regardless of whether the issue was raised at trial. State v. Sykes, 434 So. 2d 325, 326 (Fla. 1983); Plummer v. State, 455 So. 2d 550, 550 (Fla. 1st DCA 1984). The solicitation statute, Section 777.04(2), Florida Statutes (1987), provides: Whoever solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or reques…
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Polite v. State, 454 So. 2d 769 (Fla. 1st DCA 1984)…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.…
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State v. Tousignant, 460 So. 2d 450 (Fla. 2d DCA 1984)…ord “offering” in the statute was equivalent to the use of the word “attempting” and therefore held that there can be no separate crime of attempted resisting arrest with violence. Accord Jordan v. State, 438 So. 2d 825 (Fla.1983); Plummer v. State, 455 So. 2d 550 (Fla. 1st DCA 1984); Polite v. State, 454 So. 2d 769 (Fla. 1st DCA 1984). The holding in McAbee was predicated upon the well-settled principle that when the definition of an offense charged includes the attempt to commit that act, there can be no s…
Authorities Cited
- State v. Sykes, 434 So. 2d 325 (Fla. 1983)
- Louie L. Wainwright v. Potts, 438 So. 2d 825 (Fla. 1983)
- Carwise v. State, 454 So. 2d 707 (Fla. 1st DCA 1984)