WINSTON NELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Winston Nelson appealed his convictions for battery upon a law enforcement officer and resisting arrest with violence. The court reversed his battery conviction because the trial court erred in denying a jury instruction on the necessarily lesser-included offense of simple battery, but affirmed his resisting arrest conviction and remanded for resentencing.
The trial court erred in denying the jury instruction on simple battery, requiring reversal and remand for a new trial on the battery charge. Battery on a law enforcement officer and resisting arrest with violence are separate offenses under Florida law permitting distinct convictions and punishments, so the double jeopardy challenge fails and the resisting arrest conviction is affirmed.
[1] A trial court must instruct the jury on a necessarily lesser-included offense, regardless of the degree of proof supporting the greater offense.
[2] The denial of a jury instruction on a necessarily lesser-included offense constitutes per se reversible error.
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Join FLexlaw to unlock all legal intelligence“Under the rules of criminal procedure, the trial judge has no discretion whether to instruct the jury on a necessarily lesser-included offense, regardless of degree of proof supporting the conviction for the greater offense.”
Establishes the mandatory nature of jury instructions on lesser-included offenses under Florida law
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Join FLexlaw to unlock all legal intelligenceWinston Nelson was convicted of battery upon a law enforcement officer and resisting arrest with violence. The trial court denied Nelson's request for…
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PER CURIAM.
Appellant Winston Nelson challenges his conviction for battery upon a law enforcement officer and resisting arrest with violence. As to appellant’s conviction for battery upon a law enforcement officer, he asserts that the trial court erred in denying a jury instruction on simple battery.
We agree. Under the rules of criminal procedure, the trial judge has no discretion whether to instruct the jury on a necessarily lesser-ineluded offense, regardless of degree of proof supporting the conviction for the greater offense. See State v. Wimberly, 498 So. 2d 929 (Fla.1986).
Accordingly, because it is well settled in this state that the denial of such a right constitutes per se reversible error, we must reverse and remand for a new trial as to the battery upon a law enforcement officer. As to appellant’s conviction for resisting arrest with violence, appellant raises the issue of whether the trial court erred in adjudicating appellant guilty of both battery on a law enforcement officer and resisting arrest with violence based on double jeopardy grounds. Battery on a law enforcement officer and resisting arrest with violence are separate offenses. State v. Henriquez, 485 So. 2d 414 (Fla.1986).
While these offenses are similar in nature and usually happen in conjunction with one another, based on their statutory elements they are separate and distinct. See State v. Carpenter, 417 So. 2d 986 (Fla.1982).
Hence, the intent of the legislature is to provide for separate convictions and punishments. State v. Baker, 452 So. 2d 927 (Fla.1984).
Accordingly, we affirm appellant’s conviction of resisting arrest with violence, but remand for resentencing based on the revised scoresheet which may result from our decision as to appellant’s conviction for battery upon a law enforcement officer. GLICKSTEIN and KLEIN, JJ., and ANGELOS, CYNTHIA G., Associate Judge, concur.
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Norton v. State, 691 So. 2d 616 (Fla. 5th DCA 1997)…rest); State v. Barnard, 405 So. 2d 210 (Fla. 5th DCA 1981) (warrantless felony arrest in suspect’s home did not justify suspect’s use of force to resist arrest by uniformed officers he knew to be law enforcement officers). See also Nelson v. State, 665 So. 2d 382 (Fla. 4th DCA 1996). Consequently, the trial court properly found that Norton had violated his probation by committing the offenses of resisting an officer with violence and battery on a law enforcement officer. Norton was on probation for dealing…
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Rogers v. State, 844 So. 2d 728 (Fla. 5th DCA 2003)…(Fla. 5th DCA 2002); Arnold v. State, 755 So. 2d 696 (Fla. 4th DCA 1999). . Williams v. State, 792 So. 2d 1207 (Fla.2001). . Macri v. State, 689 So. 2d 1280 (Fla. 5th DCA 1997) (citing State v. Wimberly, 498 So. 2d 929 (Fla.1986); Nelson v. State, 665 So. 2d 382 (Fla. 4th DCA 1996); Crapps v. State, 566 So. 2d 62 (Fla. 5th DCA 1990)); Prater v. State, 608 So. 2d 559 (Fla. 2d DCA 1992). . Washington v. State, 758 So. 2d 1148 (Fla. 4th DCA), review denied, 786 So. 2d 1192 (Fla. 2000); Tomlinson v. State, 584…
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Bell v. State, 912 So. 2d 5 (Fla. 4th DCA 2005)…t with violence and battery on a law enforcement officer violated double jeopardy as well. Battery on a law enforcement officer and resisting arrest with violence are separate offenses. State v. Henriquez, 485 So. 2d 414 (Fla.1986); Nelson v. State, 665 So. 2d 382 (Fla. 4th DCA 1996). This refutes half of appellant’s double jeopardy challenge, leaving the claim as to his separate convictions for resisting arrest with violence and resisting arrest without violence. Appellant’s challenge on this claim was color…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- State v. Baker, 452 So. 2d 927 (Fla. 1984)
- State v. Carpenter, 417 So. 2d 986 (Fla. 1982)
- State v. Henriquez, 485 So. 2d 414 (Fla. 1986)