DEREK L. WIMBLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
The appellant was convicted of resisting arrest without violence and escape. The trial court instructed the jury that the police were in lawful execution of a legal duty at the time the alleged offenses took place. We agree with appellant that the trial court erred in not submitting the issue of the legality of defendant’s arrest to the jury. See Williams v. State, 511 So. 2d 740 (Fla. 5th DCA 1987); Smith v. State, 399 So. 2d 70 (Fla. 5th DCA 1981). This error requires reversal for a new trial.
We do not agree with appellant that the evidence was insufficient to sustain the verdicts of the jury. In addition, and to avoid problems on retrial, we note that under the evidence submitted an instruction on the defense of necessity was warranted; that evidence of the circumstances of appellant’s later arrest should not have been admitted; and that the trial court should have used the standard jury instructions to define the elements of the offense of escape.
ANSTEAD, GUNTHER and WARNER, JJ., concur.
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Hierro v. State, 608 So. 2d 912 (Fla. 3d DCA 1992)…ted the lawful execution of a legal duty, the trial court 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,…
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State v. Anderson, 639 So. 2d 609 (Fla. 1994)…Third District that the “generic and perfectly correct statement of the law” contained in the standard instruction on resisting an officer without violence is 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 de…
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Starks v. State, 627 So. 2d 1194 (Fla. 3d DCA 1993)…ficer’s attempt to stop the defendant was in the execution of a legal duty, impermissibly relieved the jury of its responsibility to decide whether the victims were officers, acting lawfully, in the performance of a legal duty. See Wimbley v. State, 567 So. 2d 560, 561 (Fla. 4th DCA 1990) (it is error for the trial court to instruct the jury that the police were in lawful execution of a legal duty at the time the alleged offense took place). The “duty to perform” paragraph of the standard instruction provide…
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- Smith v. State, 399 So. 2d 70 (Fla. 5th DCA 1981)
- Pace v. Perry, 511 So. 2d 740 (Fla. 5th DCA 1987)
- Williams v. State, 511 So. 2d 740 (Fla. 5th DCA 1987)