SHERMAN LEONARD ATKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sherman Leonard Atkins appeals his conviction for resisting an officer without violence. The court reversed the conviction for this misdemeanor charge, finding that the state's evidence failed to establish the elements of the offense under Florida Statute § 843.02, while affirming all other convictions and the sentence.
The motion for judgment of acquittal on the resisting an officer without violence charge should have been granted because the state's evidence affirmatively failed to establish the elements of the crime. The conviction for this offense is reversed.
[1] A conviction for resisting an officer without violence is improper when the State's evidence affirmatively demonstrates the charged violation was not committed.
[2] A fundamental error occurs when the State fails to prove an essential element of the charged offense.
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“it affirmatively appears from the case put on by the State that the charged violation of section 843.02, Florida Statutes (2006), was not committed by Mr. Atkins”
Establishes the standard for reversal: when the state's own evidence proves the defendant did not commit the crime
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Join FLexlaw to unlock all legal intelligenceSherman Leonard Atkins was charged with resisting an officer without violence under § 843.02, Florida Statutes (2006), along with other crimes. The st…
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MONACO, J.
The appellant, Sherman Leonard Atkins, raises a number of issues in this appeal from his judgment and sentence, only one of which merits discussion. We conclude that the motion made by Mr. Atkins for judgment of acquittal with respect to the misdemeanor charge of resisting an officer without violence1 should have been granted in accordance with the holding of A.A.R. v. State, 926 So. 2d 463 (Fla. 4th DCA 2006). See also Steele v. State, 537 So. 2d 711 (Fla. 5th DCA 1989). Compare State v. Townsend, 585 So. 2d 495 (Fla. 5th DCA 1991). We note that this matter was not raised before the trial court except by an unparticularized motion for judgment of acquittal. The error, however, was fundamental because it affirmatively appears from the case put on by the State that the charged violation of section 843.02, Florida Statutes (2006), was not committed by Mr. Atkins. See F.B. v. State, 852 So. 2d 226, 230-31 (Fla.2003); Troedel v. State, 462 So. 2d 392, 399 (Fla.1984); Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987)(en banc), review denied, 525 So. 2d 881 (Fla.1988). We, therefore, reverse the conviction of Mr. Atkins of resisting an officer without violence, and remand this case to the trial court to amend the judgment and sentence to assure that his record will not reflect a conviction of this offense.
Having reviewed the record, we conclude that there is no reason to require Mr. Atkins to be resentenced by the trial court as a result of our holding. Thus, we otherwise affirm the judgment with respect to all other charged crimes of which Mr. Atkins was convicted, as well as the sentence awarded by the trial court.
AFFIRMED in part, REVERSED in part, and REMANDED.
THOMPSON, J. and SMITH T., Associate Judge, concur. . See § 843.02, Fla. Stat. (2006).
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Brevick v. State, 965 So. 2d 1246 (Fla. 5th DCA 2007)…have been convicted. The facts of this case and the arguments made on behalf of Mr. Brevick are well within the parameters of what the case law denominates “recantation.” A.A.R. v. State, 926 So. 2d 463 (Fla. 4th DCA 2006); see also Atkins v. State, 959 So. 2d 1267 (Fla. 5th DCA 2007). Assuming that the information Defendant provided rose to the level of giving a “false name” or “falsely identifying himself,” Mr. Brevick promptly recanted and provided complete and correct information immediately upon being tax…
Authorities Cited
- F.B. v. State, 852 So. 2d 226 (Fla. 2003)
- Troedel v. State, 462 So. 2d 392 (Fla. 1984)
- Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987)
- Dep't of Hwy. Safety & Motor Vehicles v. Verner, 926 So. 2d 463 (Fla. 1st DCA 2006)
- Steele v. State, 537 So. 2d 711 (Fla. 5th DCA 1989)
- State v. Townsend, 585 So. 2d 495 (Fla. 5th DCA 1991)