Frey v. State

• Decision Date: 05 March 1998
• Docket Number: No. 88924,88924
• Citation: 708 So.2d 918
• Court: Florida Supreme Court
• Parties: 23 Fla. L. Weekly D123 Thomas W. FREY, Petitioner, v. STATE of Florida, Respondent.

Page 918

708 So.2d 918

23 Fla. L. Weekly D123

Thomas W. FREY, Petitioner, v. STATE of Florida, Respondent.

No. 88924.

Supreme Court of Florida.

March 5, 1998.

James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Tenth Judicial Circuit, Bartow, for Petitioner.

Robert A. Butterworth, Attorney General, and Ann Pfeiffer Corcoran, Assistant Attorney General, Tampa, for Respondent.

SHAW, Justice.

We have for review Frey v. State, 679 So.2d 37 (Fla. 2d DCA 1996), wherein the court certified:

Is the offense of resisting arrest with violence a specific intent crime to which the defense of voluntary intoxication applies?

Id. at 38. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in the negative and approve Frey.

Deputy Britt was on uniformed patrol at 11:30 p.m., April 20, 1994, when he saw Thomas Frey acting suspiciously near Earl's Trailer Park. Britt asked Frey for identification, and when a radio check showed an outstanding arrest warrant, Britt attempted Frey was charged with aggravated battery on a law enforcement officer and resisting arrest with violence. He was tried before a jury and in closing argument defense counsel argued that Frey had been too drunk to form the specific intent to commit the crimes. The prosecutor, on the other hand, told the jury that while voluntary intoxication is a defense to aggravated battery, it is not a defense to resisting arrest with violence. The judge in his instructions to the jury echoed the prosecutor's statement of the law. Frey was convicted of battery and resisting arrest with violence. The district court affirmed and certified the above question.

to handcuff him. Frey, who was very drunk (his blood alcohol level was .388, or approximately four times the legal limit for driving), said, "I'm not going to jail," and grabbed Britt's throat with both hands, choking him. Britt tried to break free but could not. The deputy kicked and punched Frey, and in a final attempt to free himself, shot Frey in the legs. Both Britt and Frey were treated at the hospital for their injuries.

Frey argues that resisting arrest with violence is a specific intent crime and that his requested instruction on voluntary intoxication should have been given on this charge. He asserts that the trial court erred not only in denying the instruction but also in instructing the jury that voluntary intoxication is not a defense to resisting arrest with violence. We disagree.

Voluntary intoxication has long been recognized in Florida as a defense to specific intent crimes, as this Court noted in Linehan v. State, 476 So.2d 1262 (Fla.1985):

[W]e note that this Court has long recognized voluntary intoxication as a defense to specific intent crimes. Cirack v. State, 201 So.2d 706 (Fla.1967); Garner v. State, 28 Fla. 113, 9 So. 835 (1891). In Garner we stated that when

a specific or particular intent is an essential or constituent element of the offense, intoxication, though voluntary, becomes a matter for consideration ... with reference to the capacity or ability of the accused to form or entertain the particular intent, or ... whether the accused was in such a condition of mind as to form a premeditated design. Where a party is too drunk to entertain or be capable of forming the essential particular intent, such intent can of course not exist, and no offense of which such intent is a necessary ingredient, [can] be perpetrated.

28 Fla. at 153-54, 9 So. at 845.

Linehan, 476 So.2d at 1264. The defense, however, is unavailable for general intent crimes. Id.

Professor LaFave describes the general contours of specific intent, as opposed to general intent, crimes:

[T]he most common usage of "specific intent" is to designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime. Common law larceny, for example, requires the taking and carrying away of the property of another, and the defendant's mental state as to this act must be established, but in addition it must be shown that there was an "intent to steal" the property. Similarly, common law burglary requires a breaking and entry into the dwelling of another, but in addition to the mental state connected with these acts it must also be established that the defendant acted "with intent to commit a felony therein." The same situation prevails with many statutory crimes: assault "with intent to kill" as to certain aggravated assaults; confining another "for the purpose of ransom or reward" in kidnapping; making an untrue statement "designedly, with intent to defraud" in the crime of false pretenses; etc.

1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.5(e)(1986)(footnotes omitted).

To determine whether resisting arrest with violence is a general intent or specific intent crime, we look to the plain language of the statute:

843.01 Resisting officer with violence to his person.--Whoever knowingly and willfully resists, obstructs, or opposes any officer ... in the lawful execution of any legal duty, by offering or doing violence to § 843.01, Fla. Stat. (1993).

the person of such officer ... is guilty of a felony of the third degree....

The statute's plain language reveals that no heightened or particularized, i.e., no specific, intent is required for the commission of this crime, only a general intent to "knowingly and willfully" impede an officer in the performance of his or her duties. In fact, the statute is similar in format to the statute defining arson, which we held to be a general intent crime. ¹ Only if the present statute were to be recast to require a heightened or particularized intent would the crime of resisting arrest with violence be a specific intent crime. ² Our holding is in harmony with our precedent. ³

Based on the foregoing, we answer the certified question in the negative and approve the result in Frey as explained herein.

It is so ordered.

OVERTON and WELLS, JJ., concur.

HARDING, J., concurs with an opinion.

GRIMES, Senior Justice, concurs with an opinion.

ANSTEAD, J., concurs in part and dissents in part with an opinion, in which KOGAN, C.J., concurs.

HARDING, Justice, concurring:

In his concurrence, Justice Anstead raises some important concerns regarding the distinction between specific and general intent crimes. I agree with Justice Anstead that this is a very confusing area of the law. See Linehan v. State, 442 So.2d 244, 246 (Fla. 2d DCA 1983) ("The distinction between 'specific' and 'general' intent crimes is nebulous and extremely difficult to define and apply with consistency.") approved, 476 So.2d 1262 (Fla.1985). However, this is not the right case to consider abolishing the distinction between specific and general intent crimes. The district court below did not address the possibility of doing away with the distinction and the parties have not had a chance to brief this issue.

If this Court were to ever consider eliminating the distinction between specific and general intent crimes, it should also consider abolishing the defense of voluntary intoxication, except as it applies to first-degree premeditated murder. Voluntary intoxication is not a statutory defense. See Linehan, 442 So.2d at 253. In fact, voluntary intoxication was not even recognized by the English common law, and did not develop in the United States until the nineteenth century. See Montana v. Egelhoff, 518 U.S. 37, 44-50, 116 S.Ct. 2013, 2018-20, 135 L.Ed.2d 361 (1996); see also Linehan, 442 So.2d at 252-53. In recent years, a number of states have abandoned the voluntary intoxication defense. See concurring and dissenting op. at 923 n. 16 (Anstead, J., concurring in part and dissenting in part) (citing John Gilbeaut, Sobering Thoughts, 83 A.B.A.J. 56, 58-59 (May 1997)). In Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996), the United States Supreme Court determined that a state may abolish the voluntary intoxication defense and that doing so does not violate due process.

GRIMES, Senior Justice, concurring.

There is much to be said for doing away with the distinction between specific and general intent crimes. I also believe that at ANSTEAD, Justice, concurring in part and dissenting in part.

some point, either this Court or the legislature might wish to consider eliminating the defense of voluntary intoxication. However, neither of these propositions has been argued in this case, and I concur that the precedent of our Court dictates that resisting arrest without violence is a general intent crime.

This case presents an ideal opportunity for this Court to act on Justice Shaw's cogent observation that "the nebulous distinction between general and specific intent crimes and the defense of voluntary intoxication bear reexamination in a suitable case." Chestnut v. State, 538 So.2d 820, 825 (Fla.1989) (Shaw, J., specially concurring) (citing Linehan v. State, 476 So.2d 1262, 1266 (Fla.1985) (Shaw, J., dissenting)). In my view, this is that "suitable case."

I believe that the artificial distinction we have established between general and specific intent, with only specific intent crimes warranting additional defenses such as voluntary intoxication, often leads to incongruous and harsh results. Countless commentators and courts have criticized the lack of a principled and useful basis for maintaining this distinction. As one commentator has noted:

These arcane rules, which relieve the State of its obligation to prove mens rea in cases in which the charged offense is characterized as one requiring only general intent, thereby creating a form of strict liability, are illogical. They remove from the criminal proceedings precisely that inquiry which is central to the construction of individual responsibility--the question of whether the defendant was capable of engaging in a process of practical reasoning.

Richard C. Boldt, The Construction of Responsibility in the...