Macklin v. State

590 So. 2d 1044, 1991 Fla. App. LEXIS 12521, 1991 WL 267946

Opinion

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.