ERNEST SCOTT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ernest Scott was convicted of attempted robbery and resisting arrest without violence after the trial court instructed the jury that an arrest constitutes lawful execution of a legal duty. The Fourth District Court of Appeal reversed, holding that the jury instruction improperly removed the issue of whether the arrest was legal from the jury's consideration, despite the instruction being designed for a different charge (resisting with violence).
The trial court reversibly erred by giving the jury instruction that precluded consideration of the arrest's legality. Although the instruction was designed for resisting arrest with violence (where legality is not a defense), it was improper to give when the defendant was convicted of resisting without violence (where legality is a valid defense).
[1] A jury instruction that effectively removes the issue of the legality of an arrest from the jury's consideration is reversible error in a prosecution for resisting arrest…
[2] The legality of an arrest is a question for the jury in a prosecution for resisting arrest.
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Join FLexlaw to unlock all legal intelligence“an arrest constitutes a lawful execution of a legal duty”
The problematic jury instruction that the trial court gave, which prevented the jury from considering whether the arrest was legal
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Join FLexlaw to unlock all legal intelligenceScott was charged with resisting arrest with violence. Over defense objection, the trial court gave a standard jury instruction stating that 'an arres…
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LETTS, Judge.
The defendant was found guilty of attempted robbery and resisting arrest without violence. The issue presented is whether the trial court erred in instructing the jury. We reverse.
The defendant was charged with resisting arrest with violence. Over defense objection,1 the trial court gave the Florida Standard Jury Instruction on resisting arrest with violence which instructs the jury that “an arrest constitutes a lawful execution of a legal duty.” The defendant argues that since the illegality of an arrest is a valid defense to resisting arrest without violence, the crime he was convicted of, the foregoing instruction amounts to a directed verdict because it effectively removed the issue of the legality of the arrest from the jury’s consideration.
The state argues that the question of whether the defendant was legally arrested is irrelevant, notwithstanding his conviction on resisting without violence, because the illegality of an arrest is never a defense to resisting arrest with violence, the crime for which the defendant was charged. Frankly, this argument appeals to us, but the result is foregone by reason of two cases, cited by neither the state nor the public defender, Dion v. State, 564 So. 2d 618 (Fla. 4th DCA 1990) and Wimbley v. State, 567 So. 2d 560 (Fla. 4th DCA 1990). Both Dion and Wimbley are virtually indistinguishable from the matter before us and both squarely held that the trial judge had re versibly erred by taking from the jury the question of the validity of the arrests.
We are not unaware of an even more recent case out of this court which reached a contrary result and distinguished Dion and Wimbley. See Stayer v. State, 590 So. 2d 25 (Fla. 4th DCA 1991). Suffice it to say, we cannot distinguish them from the case sub judice and this cause is reversed.
REVERSED.
GLICKSTEIN, C.J., concurs.
ANSTEAD, J., dissents with opinion.
. The objection was not a model of clarity, but we deem it sufficient.
ANSTEAD, Judge,
dissenting.
I do not believe the alleged error was preserved by a proper objection in the trial court.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Anderson, 639 So. 2d 609 (Fla. 1994)…concluded that the modified standard instruction given in this case cannot be distinguished from the standard instruction that was found to have improperly taken the question of the validity of the defendant’s arrest from the jury in Scott v. State, 594 So. 2d 832 (Fla. 4th DCA 1992). First, we agree with the State that the claim that served as the basis for reversal below was not presented to the trial court and thus was not properly preserved for appellate review. Craig v. State, 510 So. 2d 857 (Fla.1987)…
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Starks v. State, 627 So. 2d 1194 (Fla. 3d DCA 1993)…guishing arrests based on probable cause). Where there is a disputed issue as to the lawfulness of the arrest, more is required. See Stayer v. State, 590 So. 2d at 26; Davis v. State, 381 So. 2d 285, 286 (Fla. 1st DCA 1980); see also Scott v. State, 594 So. 2d 832 (Fla. 4th DCA 1992). See generally State v. Saunders, 339 So. 2d 641, 642 n. 2 (Fla.1976) (discussing right to resist unlawful arrest without violence); Lee v. State, 368 So. 2d 395, 396-97 (Fla. 3d DCA) (majority opinion and [*1197] Schwartz, J., s…
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McBRIDE v. State, 604 So. 2d 1291 (Fla. 3d DCA 1992)…d appellant.” [e.s.] See also Kirschenbaum v. State, 592 So. 2d 1272 (Fla. 3d DCA 1992). On this basis, we follow Stayer v. State, 590 So. 2d 25 (Fla. 4th DCA 1991), which is directly on point, and, for the same reason, disagree with Scott v. State, 594 So. 2d 832 (Fla. 4th DCA 1992).1 The distinction drawn by Judge Warner in Stayer, which was professedly unfathomable to the distinguished author of Scott, seems quite obvious to us. Moreover, McBride did not object and indeed appears to have agreed to the subs…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion v. State, 564 So. 2d 618 (Fla. 4th DCA 1990)
- Wimbley v. State, 567 So. 2d 560 (Fla. 4th DCA 1990)
- Stayer v. State, 590 So. 2d 25 (Fla. 4th DCA 1991)