ANTHONY ADAMS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Anthony Adams was convicted, inter alia, of resisting an officer with violence. Without objection, the trial court charged the jury: “The court further instructs you that Sgt. James Bigler was in the process of performing a lawful execution of a legal duty.”
Defendant was also convicted of aggravated battery on a police officer. Without objection, the trial court charged the jury: “The court now instructs you that Sgt. James Bigler is a law enforcement officer.” There was no dispute at trial that the officer was a law enforcement officer and that, at the relevant time, he was in the process of performing the lawful execution of a legal duty.
The above-quoted instructions are erroneous. Starks v. State, 627 So. 2d 1194 (Fla. 3d DCA 1993). The error is not, however, fundamental. Id. at 1198, and cases cited therein.
Defendant’s remaining point is without merit.
Affirmed.
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Taylor v. State, 690 So. 2d 686 (Fla. 5th DCA 1997)…ce that would have been legal in any event, we find that he is now estopped to assert the illegality of the sentence after he has knowingly taken advantage of its benefits. See Warrington v. State, 660 So. 2d 385 (Fla. 5th DCA 1995); Smith v. State, 630 So. 2d 641 (Fla. 5th DCA 1994); Gaskins v. State, 607 So. 2d 475 (Fla. 1st DCA 1992). We are not here facing a violation which is alleged to have occurred during that portion of the sentence which exceeded the statutory maximum. We acknowledge conflict with…
Authorities Cited
- Starks v. State, 627 So. 2d 1194 (Fla. 3d DCA 1993)