MYRTLE KIRK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kirk appeals her conviction for resisting an officer with violence, arguing the trial court erred by refusing to instruct the jury on the lesser included offense of resisting arrest without violence. The Florida Supreme Court had recently held that resisting without violence is a permissive lesser included offense, and the appellate court agrees the jury instruction should have been given.
The trial court erred in refusing to instruct the jury on resisting arrest without violence as a permissive lesser included offense. Where the information charges resisting an officer in the lawful execution of a legal duty, some evidence of the lawfulness of the arrest is submitted at trial, and the elements of the lesser offense are set forth in the charging document, the jury instruction on the lesser offense must be given.
[1] Resisting arrest without violence is a permissive lesser included offense of resisting arrest with violence.
[2] A jury instruction on resisting arrest without violence should be given when requested if the elements of the lesser offense are set forth in the charging document and so…
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Join FLexlaw to unlock all legal intelligence“resisting arrest without violence is a permissive lesser included offense of resisting arrest with violence”
Statement of the Florida Supreme Court's holding that established the legal basis for requiring the jury instruction in this case.
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Join FLexlaw to unlock all legal intelligenceKirk was charged with resisting an officer with violence and attempted battery on a law enforcement officer. At trial, conflicting evidence was presen…
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W. SHARP, Judge.
Kirk appeals from a judgment adjudicating her guilty of resisting an officer with violence and attempted battery on a law enforcement officer,1 after a jury trial. She argues on appeal that the conviction for resisting arrest with violence should be reversed and the cause remanded for trial because the trial court failed to instruct the jury on a permissive lesser included offense: resisting arrest without violence.2 We agree.
At trial, the defense requested an instruction on resisting arrest without violence. The trial court refused, relying on Espinosa v. State, 668 So. 2d 1116 (Fla. 5th DCA), quashed, 686 So. 2d 1345 (Fla.1996). In that case, this court indicated that resisting arrest without violence and resisting arrest with violence were different crimes because resisting without violence required proof of a lawful arrest as an element of the offense. However, we certified the following question to the Florida Supreme Court:
Is resisting an officer without violence a lesser included offense of resisting with violence?
After the trial had taken place below, the Florida Supreme Court held that resisting arrest without violence is a permissive lesser included offense of resisting arrest with violence. It also held that the lesser offense instruction should be given where requested, if the elements of the lesser offense are set forth in the charging document and some evidence of the lawfulness of the arrest is submitted at trial.
It appears in this case that the information charged Kirk with resisting an officer “in the lawful execution of a legal duty.” It then specified that she kicked and struck the officer while he was trying to effect an arrest. At trial, conflicting evidence was presented as to whether Kirk resisted an arrest (her own or her brother’s) with or without violence, and whether either arrest was legal. Thus, pursuant to Espinosa, the trial court should have instructed the jury on the permissible lesser included offense of resisting arrest without violence.
Accordingly, we affirm the attempted battery charge but reverse and remand for further proceedings in the resisting arrest with violence count.
AFFIRMED in part; REVERSED in part; REMANDED.
GRIFFIN, C.J., concurs.
HARRIS, J., concurs in result only.
. §§ 843.01; 784.04, Fla. Stat. (1995).
. § 843.02, Fla. Stat.
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Behm v. Campbell, 925 So. 2d 1070 (Fla. 5th DCA 2006)…on of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Resisting arrest without violence is a permissive lesser included offense of resisting arrest with violence. Kirk v. State, 708 So. 2d 636 (Fla. 5th DCA 1998). . At the time Behm filed his lawsuit, Taylor Douglas was the Sheriff. Daniel Kelly was later elected Sheriff and was substituted for Douglas. . Marilyn’s claims were for loss of consortium. . Rule 410. Inadmissibility of Plea…
Authorities Cited
- State v. Espinosa, 686 So. 2d 1345 (Fla. 1996)
- Curtis v. State, 668 So. 2d 1116 (Fla. 2d DCA 1996)
- Espinosa v. State, 668 So. 2d 1116 (Fla. 5th DCA 1996)