Lett v. State

29 So. 3d 455, 2010 Fla. App. LEXIS 2914, 2010 WL 816183

Opinion

CLARK, J.

As the state concedes, the trial court committed fundamental error by failing to instruct the jury on the knowledge element for the charge of resisting arrest without violence because that element was disputed at trial. Leonard v. State, 1 So.3d 1271 (Fla. 1st DCA 2009); Harris v. State, 935 So.2d 1259 (Fla. 5th DCA 2006). The standard jury instruction for this offense does not contain language addressing a defendant’s knowledge that the person he or she is resisting is an officer, but when such knowledge is in dispute, it is an element of the crime of resisting an officer without violence and requires instruction. Cooper v. State, 742 So.2d 855 (Fla. 1st DCA 1999).

The state’s request to certify the question of whether knowledge is an element of resisting an officer without violence is denied.

The conviction for resisting arrest without violence (Count III) is REVERSED and this case REMANDED.

VAN NORTWICK and MARSTILLER, JJ., concur.