Jordan v. State
| Decision Date | 29 September 1983 |
| Docket Number | No. 62419,62419 |
| Citation | 438 So.2d 825 |
| Parties | Frederick JORDAN, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Jerry Hill, Public Defender and Deborah K. Brueckheimer, Asst. Public Defender, Tenth Judicial Circuit, Clearwater, for petitioner.
Jim Smith, Atty. Gen. and Michael J. Kotler, Asst. Atty. Gen., Tampa, for respondent.
Petitioner seeks review of the decision of the Second District Court of Appeal, Jordan v. State, 416 So.2d 1161 (Fla. 2d DCA 1981), on grounds of direct and express conflict with decisions of this Court. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
Petitioner was brought to trial on a charge of resisting arrest with violence pursuant to section 843.01, Florida Statutes (1979). At the prosecutor's request, over defense objection, the jury was instructed on attempted resisting arrest with violence as a lesser-included offense and the jury returned a verdict of guilty of attempted resisting arrest with violence. In fact, section 843.01 makes the attempt a part of the crime. 1 Thus, the crime for which petitioner was convicted does not exist. The trial court, belatedly becoming aware of this, adjudicated petitioner guilty of the lesser-included offense of resisting arrest without violence. The district court set aside the adjudication and remanded for a new trial on the original charge, citing this Court's decision in Achin v. State, 436 So.2d 30 (Fla.1982), as authority for the proposition that when a defendant has been convicted of a non-existent offense which, in fact includes all the elements of the offense originally charged, double jeopardy does not prevent retrial on the original charge.
Petitioner contends that Achin turns on the "invited error" doctrine, in that Achin's counsel had requested the defective instruction. In State v. Sykes, 434 So.2d 325 (Fla.1983), we disposed of that contention and reached the same result as Achin. Sykes and Achin control the case at bar, and this district court has reached the result those decisions mandate.
Therefore, the decision of the district court is approved and this cause is remanded for a new trial.
It is so ordered.
1 843.01 Resisting officer with violence to his person.--Whoever knowingly and willfully resists, obstructs, or opposes any sheriff, deputy sheriff, officer of the Florida Highway Patrol, municipal police officer, county or...
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Green v. U.S.A, Case No. 8:08-cr-348-T-17TGB
...3d 132 (Fla. 2009), and have interpreted the term "offering to do violence" as an attempt to useforce on an officer, see Jordan v. State, 438 So. 2d 825 (Fla. 1983), or a threat to use force, see Scullock v. State, 377 So. 2d 682, 683 (Fla. 1979) (defendant "threatened to inflict violent ha......
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Wright v. Warden, FCC Coleman - Medium, Case No: 5:11-cv-193-Oc-29PRL
...have interpreted the term "offering to do violence" as an attempt to use force on an officer or a threat to use force. See Jordan v. State, 438 So. 2d 825 (Fla. 1983); Scullock v. State, 377 So. 2d 682, 683 (Fla. 1979). The Eleventh Circuit has recognized that a Florida conviction for resis......
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Brown v. State
...offense is itself an attempt to complete an act, there is no separate crime consisting of an attempt to commit the offense. Jordan v. State, 438 So.2d 825 (Fla.1983) (no crime of attempting to resist an officer with force); State v. Sykes, 434 So.2d 325 (Fla.1983) (no crime of attempted the......
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State v. Wilson
...nonexistent offense of attempted resisting arrest with violence was retrial on the resisting arrest with violence charge. Jordan v. State, 438 So.2d 825 (Fla.1983). Wilson is correct in his assertion that those cases involved nonexistent offenses which were lesser included offenses of the p......