GREGORY JOEL TICE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gregory Joel Tice was convicted of resisting an officer with violence, but the trial court improperly denied his requested jury instruction on the lesser-included offense of resisting an officer without violence. The court reversed and remanded because the evidence supported the lesser instruction and the jury's acquittal on the battery charge rendered the omission harmful error.
The trial court committed reversible error by denying the requested instruction on resisting an officer without violence. Although resisting without violence is not a necessarily lesser-included offense of resisting with violence, it becomes one depending on the charging document and proof presented. Where the omitted offense is the next lesser crime and the jury acquitted on the greater charge, the omission is per se harmful error.
[1] A jury instruction on a lesser-included offense is required when the evidence presented at trial could support a verdict for that offense.
[2] Resisting an officer without violence can be a lesser-included offense of resisting an officer with violence, depending on the charging document and trial evidence.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although resisting an officer without violence is not a necessarily lesser-included offense of resisting an officer with violence, it may become a lesser-included offense depending upon the allegations of the charging document and the proof presented at trial.”
Establishes that lesser-included offenses can be conditional on the specific evidence presented, not merely categorical
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn July 9, 1987, Tice had an argument with his wife at his mother's home in Eloise, Florida. His wife left and later contacted HRS and a sheriff's dep…
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ALTENBERND, Judge.
Gregory Joel Tice appeals his conviction for resisting an officer with violence. We reverse the conviction because he did not receive his requested instruction on resisting an officer without violence, which is the next lesser-included offense under the evidence in this case.
On July 9, 1987, Mr. Tice and his wife had an argument while they were at the home of Mr. Tice’s mother in Eloise, Florida. Mrs. Tice returned to the couple’s home in Eagle Lake, Florida, leaving the couple’s two young children with Mr. Tice. When she arrived home, Mrs. Tice called a counselor for HRS and told the counselor that the children were without food.
The HRS counselor and a deputy sheriff went to the house in Eloise to check on the children.
The testimony concerning the events at the house that evening includes at least two sharply contrasting versions. All parties agree that a backup deputy subsequently arrived at the scene. The deputies basically testified that Mr. Tice attacked the backup deputy as the backup deputy was helping the HRS counselor take custody of the children. Mr. Tice testified that the backup deputy attacked him when he merely approached his baby and the HRS counselor. Mr. Tice was arrested and charged with battery of a law enforcement officer. §§ 784.03, .07, Fla.Stat. (1985).
He was also charged with resisting an officer in the lawful execution of a legal duty with violence. § 843.01, Fla. Stat. (1985).
Both charges arose from the altercation with the backup deputy. At the conclusion of the evidence, defense counsel requested a jury instruction on resisting an officer without violence. § 843.02, Fla. Stat. (1985).
The trial court did not give the instruction because the lesser-included offense was not a category one necessarily lesser-included offense. Defense counsel argued, without success, that the evidence supported the instruction as a category two lesser-included offense. Ultimately, the jury was instructed only on resisting an officer with violence and battery of a law enforcement officer. Interestingly, the jury returned a verdict of guilty on the resisting charge and not guilty on the battery charge.
Although resisting an officer without violence is not a necessarily lesser-included offense of resisting an officer with violence, it may become a lesser-included offense depending upon the allegations of the charging document and the proof presented at trial. Ferrell v. State, 544 So. 2d 336 (Fla. 1st DCA 1989); Benjamin v. State, 462 So. 2d 110 (Fla. 5th DCA 1985).
The testimony of Mr. Tice, if accepted by the jury, would support a verdict of resisting without violence. Since the omitted offense is the next lesser crime, it was per se reversible error to omit the instruction. State v. Abreau, 363 So. 2d 1063 (Fla. 1978). Because the jury found Mr. Tice innocent of battery, the omission of the requested instruction would constitute harmful error even if Mr. Tice were required to establish the harmfulness of the error.
We note that the trial court also denied an instruction concerning a defense based upon the alleged unlawfulness of the deputies’ actions.
The record contains an unresolved question concerning the authority of HRS and the deputies to remove the children from the home under the circumstances of this evening.
The trial court determined that the deputies’ actions in this case did not permit a defense to resisting an officer with violence. § 776.051, Fla. Stat. (1985). On remand, however, it is possible that any unlawfulness of the deputies’ actions may constitute a defense to the lesser-included offense of resisting an officer without violence. See Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA), cert. denied, 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978); Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978).
Reversed and remanded.
RYDER, A.C.J., and PARKER, J., concur.
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Cited By
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White v. State, 618 So. 2d 354 (Fla. 1st DCA 1993)…ppellant responded to Officer Perry in a non-violent manner. Because the omitted instruction involves the next lesser crime, it was per se reversible error not to give the instruction here. State v. Abreau, 363 So. 2d 1063 (Fla.1978); Tice v. State, 569 So. 2d 1327, 1328 (Fla. 2d DCA1990). Appellant’s eventual sentence may very well differ as a result of our holding. Our review of the sentencing hearing transcript indicates some dispute between counsel involving the extent of the trial court’s sentencing auth…
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McBRIDE v. State, 604 So. 2d 1291 (Fla. 3d DCA 1992)…correctly granted the state’s request to instruct the jury as to that crime as a permissive lesser included offense of resisting arrest with violence, which was alleged in the information. State v. Johnson, 601 So. 2d 219 (Fla.1992); Tice v. State, 569 So. 2d 1327 (Fla. 2d DCA 1990). Second, the court did not err in charging the jury, in accordance with Florida Standard Jury Instruction (Criminal) Resisting Officer Without Violence, and section 901.15, Florida Statutes (1991) that “an arrest and detention c…
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Crevitz v. State, 673 So. 2d 168 (Fla. 3d DCA 1996)…fficer (or resisting arrest) with violence. McBride v. State, 604 So. 2d 1291, 1292 (Fla. 3d DCA 1992), approved in part, State v. Anderson, 639 So. 2d 609 (Fla.1994)1; see also White v. State, 618 So. 2d 354, 355 (Fla. 1st DCA 1993); Tice v. State, 569 So. 2d 1327, 1328 (Fla. 2d DCA 1990); Ferrell v. State, 544 So. 2d 336, 337 (Fla. 1st DCA 1989); Benjamin v. State, 462 So. 2d 110, 111 (Fla. 5th DCA 1985).2 Since in this case there was some evidence on which the jury could find that there was resistance of an…
Authorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978)
- Benjamin v. State, 462 So. 2d 110 (Fla. 5th DCA 1985)
- Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978)
- Gomez-Silva v. United States, 436 U.S. 920 (U.S. 1978)
- Groomes v. Whitner, 436 U.S. 920 (U.S. 1978)
- Ferrell v. State, 544 So. 2d 336 (Fla. 1st DCA 1989)