TONY MACKLIN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
Explore caselaw by topic → Browse Simple Battery cases and more on FLexlaw
PER CURIAM.
In one count of the information, defendant was charged with battery on a law enforcement officer. Defendant requested a jury instruction on simple battery as a lesser included offense; the trial court denied the request. Over defendant’s objection, the trial court instructed the jury on resisting arrest with violence as, a lesser included offense. The jury found defendant guilty of resisting arrest with violence.
The state correctly concedes that the trial court erred in failing to instruct the jury on simple battery as a lesser included offense of the charge of battery on a law enforcement officer. State v. Wimberly, 498 So. 2d 929 (Fla.1986). Additionally, the trial court erred in instructing the jury on resisting arrest with violence, not a lesser included offense of battery on a law enforcement officer. State v. Henriquez, 485 So. 2d 414 (Fla.1986); see State v. Carpenter, 417 So. 2d 986 (Fla.1982). We therefore reverse the conviction for resisting arrest with violence.
Reversed and remanded for a new trial.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Brown v. State, 608 So. 2d 114 (Fla. 1st DCA 1992)…directly on point and has been followed in Ferrell v. State, 544 So. 2d 336 (Pla. 1st DCA 1989) (reversing conviction for battery on law enforcement officer, because trial court failed to give simple battery instruction). See also Macklin v. State, 590 So. 2d 1044 (Pla. 3d DCA 1991); Wyche v. State, 573 So. 2d 953 (Fla.2d DCA 1991); Crapps v. State, 566 So. 2d 62 (Pla. 5th DCA 1990). The state seeks to distinguish Wimberly on the ground that it is a 1986 decision and was therefore written prior to the May 19…
Authorities Cited
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- State v. Carpenter, 417 So. 2d 986 (Fla. 1982)
- State v. Henriquez, 485 So. 2d 414 (Fla. 1986)