Macklin v. State, 590 So. 2d 1044

CONFESSION OF ERROR

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.

Case Details

Case Name: Macklin v. State

Court Name: District Court of Appeal of Florida

Date Published: Dec 17, 1991

Citations: 590 So. 2d 1044; 1991 WL 267946; 1991 Fla. App. LEXIS 12521; No. 91-1164

Docket Number: No. 91-1164

Court Abbreviation: Fla. Dist. Ct. App.