454 So.2d 769 (Fla.App. 1 Dist. 1984), AW-29, Polite v. State

Docket Nº:AW-29
Citation:454 So.2d 769
Party Name:Rodney POLITE, Appellant, v. STATE of Florida, Appellee.
Case Date:August 24, 1984
Court:Florida Court of Appeals, First District
 
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Page 769

454 So.2d 769 (Fla.App. 1 Dist. 1984)

Rodney POLITE, Appellant,

v.

STATE of Florida, Appellee.

No. AW-29

Florida Court of Appeals, First District.

August 24, 1984

Rehearing Denied Sept. 17, 1984.

Page 770

Michael E. Allen, Public Defender; Michael J. Minerva, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., John W. Tiedemann, Asst. Atty. Gen., for appellee.

WENTWORTH, Judge.

Appellant seeks review of judgments of conviction and sentences for various offenses including battery, throwing a missile at an occupied vehicle, and attempted resisting an officer with violence. Since there is no such offense under the laws of Florida, we reverse the judgment and sentence for attempted resisting an officer with violence. Appellant having presented no other point of reversible error, 1 we otherwise affirm the judgments and sentences appealed.

Appellant was tried on various charges including resisting an officer with violence in violation of § 843.01, Florida Statutes. The jury returned a verdict of not guilty as to the charged offense, but found appellant guilty of attempted resisting an officer with violence. As delineated in Plummer v. State, 455 So.2d 550 (Fla. 1st DCA 1984), since § 843.01 proscribes offering to do the prohibited act, the attempt is therefore a part of the crime and there is no lesser included offense of attempted resisting an officer with violence. Accord, Jordan v. State, 438 So.2d 825 (Fla.1983). It is reversible error to convict a defendant of such non-existent offense, even where, as here, the issue is not raised at trial. Plummer, supra; see also, State v. Sykes, 434 So.2d 325 (Fla.1983).

Appellant was also tried on charges of aggravated battery and throwing a missile at an occupied vehicle. The jury returned a verdict of not guilty as to the aggravated battery charge, but found appellant guilty of the lesser offense of simple battery. The jury also found appellant guilty of the charged offense of throwing a missile at an occupied vehicle. Both offenses were predicated upon appellant's single act of hurling a brick which passed through the window of an automobile and struck an individual seated therein. Section 790.19, Florida Statutes, which prohibits throwing a missile at, within, or in an occupied vehicle, expressly requires that the prohibited act be done "wantonly or maliciously." Relying on Golden v. State,

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