RICKEY J. DION, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We agree with appellant that the evidence presented was insufficient to support his convictions for trespass and resisting arrest without violence. There was no evidence presented to show that appellant was on notice that Holiday Park in Fort Lauderdale was “closed” at the time he allegedly trespassed in the park, or that the police officer who subsequently arrested him outside the park had a factual basis for believing appellant was on notice that the park was “closed.” See § 810.09(1), Fla. Stat. (1987).
We also agree that appellant is entitled to a new trial on the charge of resisting arrest with violence. While we find no error in the denial of appellant’s requested instructions, it is apparent that the trial court erred in instructing the jury as a matter of law that the police officer was acting lawfully when he arrested appellant. See Brannen v. State, 453 So. 2d 428 (Fla. 1st DCA 1984); Smith v. State, 399 So. 2d 70 (Fla. 5th DCA 1981).
Accordingly, we reverse with directions that appellant’s convictions for trespass and resisting arrest without violence be vacated, and that a new trial be conducted on the charge of resisting arrest with violence.
ANSTEAD, GLICKSTEIN and WARNER, JJ., concur.
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Hierro v. State, 608 So. 2d 912 (Fla. 3d DCA 1992)…t in effect directed a verdict for the State on that point. See Tillman v. State, 600 So. 2d 37 (Fla. 3d DCA 1992); Kirschenbaum v. State, 592 So. 2d 1272 (Fla. 3d DCA 1.992); Wimbley v. State, 567 So. 2d 560, 561 (Fla. 4th DCA 1990); Dion v. State, 564 So. 2d 618 (Fla. 4th DCA 1990); see also Jones v. State, 584 So. 2d 190, 191 (Fla. 5th DCA 1991); Smith v. State, 399 So. 2d 70, 71-72 (Fla. 5th DCA 1981). As set forth in the Standard Jury Instructions, the final sentence reads: “The court further instructs…
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State v. Anderson, 639 So. 2d 609 (Fla. 1994)…distinguishable from the “case-specific” instructions found improper in Wimbley v. State, 567 So. 2d 560, 561 (Fla. 4th DCA 1990) (“the police were in lawful execution of a legal duty at the time the alleged offenses took place”) and Dion v. State, 564 So. 2d 618, 618 (Fla. 4th DCA 1990) (“the police officer was acting lawfully when he arrested [the defendant]”). 604 So. 2d at 1292. Thus, we hold that the standard instruction does not take the issue of the lawfulness of the arrest from the jury. However, in…
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Starks v. State, 627 So. 2d 1194 (Fla. 3d DCA 1993)…See Hierro v. State, 608 So. 2d 912, 914-15 (Fla. 3d DCA 1992); McBride v. State, 604 So. 2d 1291, 1292 (Fla. 3d DCA 1992); Kirschenbaum v. State, 592 So. 2d 1272 (Fla. 3d DCA 1992); Stayer v. State, 590 So. 2d 25 (Fla. 4th DCA 1991); Dion v. State, 564 So. 2d 618 (Fla. 4th DCA 1990).3 [*1197] When the “duty being performed” jury instruction was discussed at the charge conference, the following transpired: [Defense counsel]: What are you putting in for that [paragraph of the Standard Jury Instruction]? The…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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- Smith v. State, 399 So. 2d 70 (Fla. 5th DCA 1981)
- Brannen v. State, 453 So. 2d 428 (Fla. 1st DCA 1984)