THOMAS W. FREY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Thomas Frey was convicted of battery (lesser included offense of aggravated battery on a law enforcement officer) and resisting arrest with violence. On appeal, he challenged the denial of a voluntary intoxication jury instruction and certain probation conditions. The court affirmed both rulings but certified a question to the Florida Supreme Court regarding whether resisting arrest with violence is a specific intent crime.
The court affirmed the trial court's denial of the voluntary intoxication jury instruction, but certified the question to the Florida Supreme Court. The court also affirmed the probation conditions because they were standard conditions listed in the probation order form, which provides constructive notice and eliminates the requirement of oral pronouncement.
[1] The voluntary intoxication defense applies only to specific intent crimes.
[2] The offense of resisting arrest with violence is a specific intent crime to which the defense of voluntary intoxication may apply.
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Establishes the foundational legal rule that controls whether the jury instruction should have been given.
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with aggravated battery on a law enforcement officer and resisting arrest with violence on April 20, 1994. A jury found him guil…
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DANAHY, Acting Chief Judge.
The state charged the appellant with aggravated battery on a law enforcement officer (Count I) and resisting arrest with vio-lenee (Count II). The offenses were alleged to have occurred on April 20,1994.
A jury found the appellant guilty of the lesser included offense of battery on Count I and guilty as charged of resisting arrest with violence on Count II. The trial court sentenced the appellant to time served on Count I and to thirty months’ imprisonment to be followed by two years’ probation on Count II.
The appellant asserts two issues on appeal. First, he argues that the trial court erred in denying his request that the jury be instructed on the application of the voluntary intoxication defense to the charge of resisting arrest with violence. We affirm on this issue but certify the question. Second, the appellant argues that the trial court erred in imposing certain probation conditions. We find no error and affirm on the second issue.
The answer to the first issue raised by the appellant depends on whether resisting arrest with violence is considered a specific intent crime or a general intent crime. The voluntary intoxication defense applies only to specific intent crimes. Linehan v. State, 476 So. 2d 1262 (Fla.1985).
In the early case of Colson v. State, 73 So. 2d 862 (Fla.1954), the defendant was charged with knowingly and willfully resisting the sheriff. The supreme court held that evidence as to whether the defendant was so drunk as to be incapable of forming the requisite intent presented a question for the jury. The supreme court has never receded from that opinion.
However, in Linehan, the court noted that Florida courts have rejected the voluntary intoxication defense “in the following eases” involving general intent crimes. One of the eases listed in this category was Williams v. State, 250 So. 2d 11 (Fla. 3d DCA 1971), which the court described as a case involving violence while resisting arrest. Williams actually is equivocal on the issue. The court said in that case:
Appellant’s argument that because he was intoxicated he ought not be held to account for his violence in resisting arrest is without basis in the law. See Colson v. State, Fla.1954, 73 So. 2d 862.
Id. at 12.
In 1986 the Fourth District Court of Appeal specifically held that resisting an arrest with violence is a specific intent crime, citing Colson. The court further held that the trial court committed reversible error by failing to give the requested instruction to the jury regarding the effect of voluntary intoxication on the defendant’s ability to form a specific intent. Gonzales v. State, 488 So. 2d 610 (Fla. 4th DCA 1986).
Were it not for the supreme court’s remarks in Linehan concerning the Williams case, we would rely on Colson and Gonzales and reverse. However, we must give due consideration to Linehan. Therefore, we affirm the trial court’s decision denying the defense request that the jury be instructed on the application of the voluntary intoxication defense to the charge of resisting arrest with violence.
Because our holding is in conflict with Gonzales and addresses a question of great public importance, we certify the following question to the supreme court:
IS THE OFFENSE OF RESISTING ARREST WITH VIOLENCE A SPECIFIC INTENT CRIME TO WHICH THE DEFENSE OF VOLUNTARY INTOXICATION APPLIES?
The appellant’s second issue on appeal concerns four conditions of his probation which were not orally pronounced. The appellant argues that because the conditions were not orally pronounced they must be stricken. The state appropriately responds by pointing out that the conditions listed as (4), (7), and (8) are among the eleven standard or general conditions of probation listed in the order of probation form added to Florida Rule of Criminal Procedure 3.986. The supreme court in State v. Hart, 668 So. 2d 589 (Fla.1996), ruled that the listing of those conditions in the order form provides constructive notice to a defendant so as to permit an opportunity to-object if probation is imposed; therefore, oral pronouncement is not required. The condition of probation numbered (10) is also a general condition of probation and need not be orally pronounced. See § 948.03(1)(k)(1), Fla.Stat. (Supp.1994); Gilchrist v. State, 674 So. 2d 847 (Fla. 2d DCA 1996).
Affirmed; question certified.
PATTERSON and ALTENBERND, JJ., concur.
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Frey v. State, 708 So. 2d 918 (Fla. 1998)…SHAW, Justice. We have for review Frey v. State, 679 So. 2d 37 (Fla. 2d DCA 1996), wherein the court certified: Is the offense of resisting arrest with violence a specific intent crime to which the defense of voluntary intoxication applies? Id. at 38. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We an…1 / 2
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Viktor Leschka v. State, 691 So. 2d 535 (Fla. 2d DCA 1997)…ssary to form specific intent. The trial court did permit defense counsel to argue this defense to [*537] the jury. The jury found the appellant guilty as charged. Voluntary intoxication is a valid defense to a specific intent crime. Frey v. State, 679 So. 2d 37 (Fla. 2d DCA 1996). The basic rule in cases such as the present one is that evidence of alcohol consumption before committing a crime does not, by itself, require a jury instruction on voluntary intoxication, upon proper request, if the evidence sho…
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Stanley v. State, 703 So. 2d 1156 (Fla. 2d DCA 1997)…Battery on a law enforcement officer is a specific intent crime to which the defense of voluntary intoxication applies. See Miller v. State, 636 So. 2d 144 (Fla. 1st DCA 1994); Parker v. State, 471 So. 2d 1352 (Fla. 2d DCA 1985). In Frey v. State, 679 So. 2d 37 (Fla. 2d DCA 1996), rev. granted, 687 So. 2d 1303 (Fla.1997), we held that resisting arrest with violence is not a specific intent crime.1 Because voluntary intoxication is a defense to one of the offenses for which Stanley is serving prison time, w…1 / 2
Authorities Cited
- State v. Hart, 668 So. 2d 589 (Fla. 1996)
- Linehan v. State, 476 So. 2d 1262 (Fla. 1985)
- Barber v. State, 488 So. 2d 610 (Fla. 3d DCA 1986)
- Colson v. State, 73 So. 2d 862 (Fla. 1954)
- Gilchrist v. State, 674 So. 2d 847 (Fla. 2d DCA 1996)
- Adele W. Snead and Robert Snead v. Plavchak, 250 So. 2d 11 (Fla. 2d DCA 1971)
- Williams v. State, 250 So. 2d 11 (Fla. 3d DCA 1971)