ERNIE RAY HOLLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ernie Ray Holley appealed his convictions for resisting arrest with violence, grand theft, armed robbery, and aggravated assault. The First District Court of Appeal reversed his resisting arrest conviction due to an erroneous jury instruction, certified a question of great public importance to the Florida Supreme Court regarding whether individuals may use force to resist unlawful arrest, and modified his sentences to run concurrently rather than consecutively.
The trial court erred in instructing the jury that a person is never justified in using force to resist arrest, as this conflicts with prior appellate precedent allowing self-defense against unlawful or excessive force. The consecutive mandatory minimum sentences for the armed robbery and aggravated assault conviction were improper under Palmer v. State because the offenses arose from a single criminal transaction. The flight instruction argument did not warrant reversal.
[1] A jury instruction stating that an arrestee may never use force to resist an arrest is erroneous when it conflicts with established precedent allowing an individual to de…
[2] An erroneous jury instruction regarding the use of force to resist arrest is not harmless when it directly relates to the charge of resisting arrest with violence.
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Join FLexlaw to unlock all legal intelligence“A person is never justified in the use of any force to resist an arrest.”
The erroneous jury instruction at issue in the case that conflicted with prior case law
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Join FLexlaw to unlock all legal intelligenceDefendant Holley was convicted of resisting arrest with violence, grand theft, armed robbery with a firearm, and two counts of aggravated assault with…
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THOMPSON, Judge.
Defendant appeals his judgments and sentences for resisting arrest with violence, grand theft, armed robbery with a firearm, and two counts of aggravated assault with a firearm. Defendant argues that the trial court erred in instructing the jury that an arrestee may never use force to resist an arrest, erred in giving a flight instruction, and erred in imposing consecutive mandatory minimum sentences. We affirm in part and reverse in part.
In accordance with Florida Standard Jury Instruction (Criminal) 3.04(d) (Self-Defense, Justifiable Use of Force), the trial court instructed the jury that “[a] person is never justified in the use of any force to resist an arrest.” Id. at page 43. This jury instruction conflicts with Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981), review denied, 412 So. 2d 470 (Fla.1982), which states that an individual may defend himself against unlawful or excessive force, even when being arrested and the use of this instruction was error. See Allen v. State, 424 So. 2d 101 (Fla. 1st DCA), review denied, 436 So. 2d 97 (Fla.1983). Unlike in Allen, we cannot say this error was harmless. We reverse defendant’s judgment and sentence for resisting arrest with violence. Because trial judges should be able to rely on the standard jury instructions as being a correct statement of the law and in order to resolve the conflict between Rule 3.04(d) and Ivester and Al len, we certify the following question to the Florida Supreme Court as one of great public importance pursuant to Rule 9.030(a)(2)(A)(v), Fla.R.App.P.:
IS FLORIDA STANDARD JURY INSTRUCTION (CRIMINAL) 3.04(d), A CORRECT STATEMENT OF THE LAW IN LIGHT OF IVESTER V. STATE, 398 So. 2d 926 (Fla. 1st DCA 1981), review denied, 412 So. 2d 470 (Fla.1982) AND ALLEN V. STATE, 424 So. 2d 101 (Fla. 1st DCA), review denied, 436 So. 2d 97 (Fla.1983)?
The imposition of consecutive mandatory minimum sentences as to the armed robbery and one of the counts for aggravated assault with a firearm (Count III) was error under Palmer v. State, 438 So. 2d 1 (Fla.1983), which was decided subsequent to the imposition of the sentences herein, because the offenses clearly arose from a single criminal transaction or episode. Accordingly, we amend the three-year mandatory minimum sentence for armed robbery with a firearm (Count V) and the three-year mandatory minimum sentence for aggravated assault with a firearm (Count III) to provide that they be served concurrently, not consecutively.
Defendant’s argument on the flight instruction does not warrant discussion and does not require reversal. See Whitfield v. State, 452 So. 2d 548 (Fla.1984).
Defendant’s conviction for resisting arrest with violence is reversed. The issue of the correctness of Florida Standard Jury Instruction (Criminal) 3.04(d) is certified to the Florida Supreme Court. The remaining judgments and sentences, as amended, are affirmed.
SHIVERS and ZEHMER, JJ., concur.
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Citator
Cited By
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Ernie Ray Holley v. State, 484 So. 2d 634 (Fla. 1st DCA 1986)…icted of two counts of aggravated assault, resisting arrest with violence, robbery with a firearm and grand theft. The conviction for resisting arrest with violence was reversed on appeal and the remaining convictions were affirmed. Holley v. State, 464 So. 2d 578 (Fla. 1st DCA 1984). In his 3.850 motion Holley contends that he was denied effective assistance of counsel because on the eve of trial his attorney, Taylor, sent two other lawyers who were unfamiliar with the case to conduct the trial. The other a…
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State v. Ernie Ray Holley, 480 So. 2d 94 (Fla. 1985)…OVERTON, Justice. This is a petition to review Holley v. State, 464 So. 2d 578 (Fla. 1st DCA 1984), in which the district court held that the trial judge erred in instructing the jury on self-defense because he failed to instruct that a person may defend himself against the use of unlawful or excessive force even when being ar…
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Preyer v. State, 575 So. 2d 748 (Fla. 5th DCA 1991)…The wording of the robbery statute and the court’s decision in Jones, Brown I and Brown II support appellant’s conclusion that the robbery and the aggravated assault in this case occurred during the same criminal episode. See also Holley v. State, 464 So. 2d 578 (Fla. 1st DCA 1984), approved, 480 So. 2d 94 (Fla.1985); Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984), rev. den., 462 So. 2d 1108 (Fla.1985). Appellant’s sentence is reversed and remanded for resentencing. Appellant contends secondly that…
Authorities Cited
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981)
- Whitfield v. State, 452 So. 2d 548 (Fla. 1984)
- Mackie Roy Allen v. State, 424 So. 2d 101 (Fla. 1st DCA 1982)