Ferrell v. State, 88-977
| Decision Date | 13 June 1989 |
| Docket Number | No. 88-977,88-977 |
| Citation | 544 So.2d 336,14 Fla. L. Weekly 1412 |
| Parties | 14 Fla. L. Weekly 1412 Ronnie FERRELL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
An Appeal from the Circuit Court for Duval County, L.P. Haddock, Judge.
Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., Bradley R. Bischoff, Asst. Atty. Gen., for appellee.
Appellant seeks review of judgments of conviction and sentences for the offenses of battery on a law enforcement officer and resisting an officer with violence. We find that the court's jury instructions should have included the lesser offenses of simple battery and resisting an officer without violence. We therefore reverse the orders appealed.
Appellant was an inmate at a county jail facility where a disturbance occurred which escalated into an altercation between correctional officers and numerous inmates. As a result of this incident appellant was charged with rioting, battery on a law enforcement officer, and resisting an officer with violence. At trial a correctional officer indicated that appellant was hollering and yelling in a manner which generally incited the other inmates and that when the officer approached appellant struck him in the mouth, whereupon the two engaged in a physical struggle which also involved another officer. Other correctional officers also testified that appellant was one of a small group inciting other inmates. One officer stated that she saw appellant "push or shove or hit" the officer with whom he engaged in the physical struggle. Appellant and another inmate denied that appellant was involved in this altercation or the general disturbance at the jail.
Appellant requested that the court instruct the jury as to the offenses of battery and resisting an officer without violence. The court noted that appellant had denied any involvement in the incident. Concluding that the state's evidence would not support these lesser offenses, the court declined to give the requested instructions. The jury was instructed as to rioting, battery on a law enforcement officer, and resisting an officer with violence, and returned verdicts finding appellant guilty of each of these offenses.
Battery is a necessarily lesser included offense of a charge of battery on a law enforcement officer. State v. Wimberly, 498 So.2d 929 (Fla.1986). Even though the evidence clearly established...
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White v. State, 91-3959
...on resisting an officer without violence. We reverse the conviction as to Count II and remand for a new trial. See Ferrell v. State, 544 So.2d 336, 337 (Fla. 1st DCA1989). Because we believe the trial court might have misapprehended, and therefore limited, the scope of its discretionary sen......
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Crevitz v. State, 95-2521
...also White v. State, 618 So.2d 354, 355 (Fla. 1st DCA 1993); Tice v. State, 569 So.2d 1327, 1328 (Fla. 2d DCA 1990); Ferrell v. State, 544 So.2d 336, 337 (Fla. 1st DCA 1989); Benjamin v. State, 462 So.2d 110, 111 (Fla. 5th DCA 1985). 2 Since in this case there was some evidence on which the......
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Brown v. State, 91-2436
...right to exercise its "pardon power." Id. at 932. Wimberly appears to be directly on point and has been followed in Ferrell v. State, 544 So.2d 336 (Fla. 1st DCA 1989) (reversing conviction for battery on law enforcement officer, because trial court failed to give simple battery instruction......