DIANE MCBRIDE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court correctly instructed the jury on a permissive lesser included offense and the lawful execution of a legal duty during an arrest.
Defendant was convicted of resisting arrest without violence. The appeal challenged the jury instructions given by the trial court regarding the offen…
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SCHWARTZ, Chief Judge.
We reject both points raised in this appeal from a conviction for resisting arrest without violence. First, the trial court 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 constitutes [the] lawful execution of a legal duty.” [e.s.] This generic and perfectly correct statement of law did not involve the vice of case-specificity which was involved in Wimbley v. State, 567 So. 2d 560, 561 (Fla. 4th DCA 1990), in which the court stated that “the police were in lawful execution of a legal duty at the time the alleged offenses took place” [e.s.], and Dion v. State, 564 So. 2d 618, 618 (Fla. 4th DCA 1990), where the jury was told that “the police officer was acting lawfully when he arrested 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 substance of the instruction below. See Squires v. State, 450 So. 2d 208 (Fla.1984).
Affirmed.
. There appears to be no authority for Scott’s departure from the earlier panel decision in Stayer without the intervention of an en banc court. See In Re Rule 9.331, 416 So. 2d 1127 (Fla.1982).
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State v. Anderson, 639 So. 2d 609 (Fla. 1994)…PER CURIAM. We have for review Anderson v. State, 629 So. 2d 960 (Fla. 4th DCA 1993), in which the [*610] Fourth District Court of Appeal certified its decision as being in conflict with McBride v. State, 604 So. 2d 1291 (Fla. 3d DCA 1992). We have jurisdiction1 and quash the decision under review. Johnnie Anderson was convicted of possession of cocaine and resisting arrest without violence. In connection with the resisting arrest charge, the defense took the posit…
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Starks v. State, 627 So. 2d 1194 (Fla. 3d DCA 1993)…on should have stated, in generic terms, an appropriate definition of “lawful execution of a legal duty.” The instruction should not have made reference to Mr. Starks. 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…
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Saldana v. State, 634 So. 2d 201 (Fla. 3d DCA 1994)…attempting to elude a police officer [§ 316.1935, Fla.Stat. (1991)], does not contain; namely, the police officer must have been engaged in the lawful execution of a legal duty. Starks v. State, 627 So. 2d 1194 (Fla. 3d DCA 1993); McBride v. State, 604 So. 2d 1291 (Fla. 3d DCA 1992); see Green v. State, 530 So. 2d 480 (Fla. 5th DCA 1988), rev. denied, 539 So. 2d 475 (Fla.1989). On the other hand, the second offense contains at least one statutory element which the first offense does not contain; namely, the d…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Rule 9.331, 416 So. 2d 1127 (Fla. 1982)
- Squires v. State, 450 So. 2d 208 (Fla. 1984)
- State v. Sinclair Johnson, 601 So. 2d 219 (Fla. 1992)
- 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)
- Scott v. State, 594 So. 2d 832 (Fla. 4th DCA 1992)
- Tice v. State, 569 So. 2d 1327 (Fla. 2d DCA 1990)
- Emilio Sanchez v. State, 592 So. 2d 1272 (Fla. 3d DCA 1992)
- Kirschenbaum v. State, 592 So. 2d 1272 (Fla. 3d DCA 1992)