RICKY MCPHEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Ricky McPhee appealed his conviction for resisting arrest, arguing that the trial court erred by instructing the jury that the arrest constituted lawful execution of a legal duty, thereby directing a verdict on an essential element. The Fourth District affirmed, finding the instruction proper because the lawfulness of the arrest was not genuinely disputed; the actual contested issue was whether excessive force justified McPhee's resistance.
The court affirmed the conviction, holding that the instruction was proper because there was no genuine dispute regarding the lawfulness of the arrest. The actual contested issue was whether excessive force justified McPhee's resistance, and the jury was properly instructed that if excessive force was used, McPhee could use reasonable force in self-defense to the extent he reasonably believed necessary.
[1] A jury instruction stating that an arrest and detention constitutes a lawful execution of a legal duty is not fundamental error when the lawfulness of the arrest is not g…
[2] A defendant is not entitled to resist arrest with violence based on an officer's use of excessive force if the jury is properly instructed on the defense of excessive for…
Previewing 2 of 4 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“an arrest and detention constitutes a lawful execution of a legal duty”
The jury instruction at issue that McPhee argued improperly directed a verdict on an essential element of the crime
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcPhee was arrested for petit theft. During the arrest, McPhee admitted to the theft but claimed the police officer used excessive force. The trial co…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Excessive Force In Arrest cases and more on FLexlaw
PER CURIAM.
We grant rehearing and withdraw our prior opinion, substituting the following in its place.
Ricky McPhee appeals his conviction for resisting arrest. McPhee admits to petit theft but argues that during his arrest the police officer used excessive force, which entitled McPhee to resist arrest with violence. The court gave the standard jury instructions on self defense and on resisting an officer, which included the following: “the Court further instructs you that an arrest and detention constitutes a lawful execution of a legal duty.” McPhee did not object to the instructions. McPhee argues that the trial court erred in giving this instruction because it directs a verdict for the state on an element of the crime, that is, whether the officer was acting lawfully in the performance of his legal duty. McPhee relies on Dion v. State, 564 So. 2d 618 (Fla. 4th DCA 1990), wherein the Fourth District reversed a conviction for resisting arrest without violence where the trial court instructed the jury as a matter of law that the police officer was acting lawfully when he arrested the appellant. We affirm.
Dion is distinguishable. It appears from that decision that the arrest was one based on probable cause which was a contested issue in the case. Wimbley v. State, 567 So. 2d 560 (Fla. 4th DCA 1990), is also distinguishable because there the trial court improperly instructed the jury that the particular police officers were in lawful execution of a legal duty at the time the alleged offenses took place. Again, the contested issue was whether the officer had probable cause to arrest from the facts and circumstances presented.
In the instant case, there was no issue as to whether the officer had probable cause to arrest. There was no real challenge to the lawfulness of the arrest as there was in Dion. The issue of excessive force was a defense. See Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985). The court instructed the jury that if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend himself, but only to the extent that he reasonably believes such force was necessary. Thus, the jury was appropriately instructed on the central issue in the case.
This objection to the instruction regarding the lawfulness of the arrest is raised for the first time on appeal. Thus, to reverse on this ground we must find that the error is fundamental. However, it is not fundamental error to fail to instruct on an essential element of' a crime where the existence of that element is not in genuine dispute. State v. Delva, 575 So. 2d 643 (Fla.1991); Jones v. State, 465 So. 2d 566 (Fla. 3d DCA 1985).
Based on the foregoing we affirm.
HERSEY and WARNER, JJ., and WALDEN, JAMES H., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Starks v. State, 627 So. 2d 1194 (Fla. 3d DCA 1993)…ling to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.” 575 So. 2d at 645 (citations omitted); accord McPhee v. State, 616 So. 2d 483, 484 (Fla. 4th DCA 1993); Morton v. State, 459 So. 2d 322 (Fla. 3d DCA 1984), review denied, 467 So. 2d 1000 (Fla.1985); see also State v. Schuck, 573 So. 2d 335, 336 (Fla.1991). The error was not fundamental. Affirmed. HUBBART, J., concurs. .The…
-
Romance Jones v. State, 640 So. 2d 204 (Fla. 4th DCA 1994)…of Miami v. Nelson, 186 So. 2d 535, n. 1 (Fla. 3d DCA 1966). In any event, the issue of whether the arrest was effected in a manner which justified the defendant’s actions in fleeing would, at most, constitute a defense. See, e.g., McPhee v. State, 616 So. 2d 483 (Fla. 4th DCA 1993). It would not entitle the defendant to a judgment of acquittal. The defendant also complains that the trial court erred in instructing the jury “that it has been stipulated that Detective Jones was engaged in the lawful executio…
-
Guitterrez v. State, 837 So. 2d 1095 (Fla. 4th DCA 2003)…that improper jury instruction rises to level of fundamental error only when it both relates to an element of the crime and that element is in dispute). Here, the lawfulness of Guitterrez’ arrest was not placed in material dispute. McPhee v. State, 616 So. 2d 483 (Fla. 4th DCA 1993)(on rehearing), is similar to the instant case. There, the defendant was convicted of resisting arrest. On appeal, McPhee argued that the trial court’s instruction to the jury that “an arrest and detention constitutes a lawful exe…
Authorities Cited
- D'Angelo v. State, 575 So. 2d 643 (Fla. 1991)
- State v. Batraville Vincent Delva, 575 So. 2d 643 (Fla. 1991)
- Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985)
- Dion v. State, 564 So. 2d 618 (Fla. 4th DCA 1990)
- Wimbley v. State, 567 So. 2d 560 (Fla. 4th DCA 1990)
- Jones v. State, 465 So. 2d 566 (Fla. 3d DCA 1985)
- Wassil v. Gilmour, 465 So. 2d 566 (Fla. 3d DCA 1985)