Pani v. State

• Citation: 361 So.2d 170
• Decision Date: 30 May 1978
• Docket Number: No. 77-885,77-885
• Parties: Anthony PANI, Appellant, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 170

361 So.2d 170

Anthony PANI, Appellant, v. The STATE of Florida, Appellee.

No. 77-885.

District Court of Appeal of Florida, Third District.

May 30, 1978.

Rehearing Denied Aug. 25, 1978.

Martin Lemlich, Miami, for appellant.

Robert L. Shevin, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.

Before PEARSON, HENDRY and KEHOE, JJ.

PER CURIAM.

The appellant, Anthony Pani, was found guilty by a jury of the crime of resisting an officer with violence to his person in violation of Section 843.01, Florida Statutes (1975). He was adjudged guilty and sentenced to five years in the state prison. On this appeal, he presents two points. The first claims error for the denial of a jury instruction. The second claims error for failure to give him credit for the time he served in the county jail prior to sentencing.

Appellant's theory of the case was that he was not guilty because he only used sufficient force to repel the officer who assaulted him first. There was some testimony supporting this position. The court charged:

"We find that 843.01 of the Florida Statutes reads as follows:

"Whoever knowingly and willfully resists, obstructs or opposes any Sheriff, Deputy Sheriff, Officer of the Florida Highway Patrol, Municipal Police Officer, Beverage Enforcement Agent, officer of the Game and Freshwater Fish Commission, officer of the Department of Natural Resources, any member of the Florida Parole and Probation Commission or any administrative aide or supervisor employed by said Commission, any County Probation Officer or any personnel or representative of the Department of Law Enforcement or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person shall be guilty of a felony of the third degree.

"Further the law in 776.05:

"Resisting (sic) ¹ a law enforcement officer, or any person who(m) he has summoned, (or) directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest or when necessarily committed in retaking felons who have escaped or when necessarily committed in arresting felons fleeing from justice.

"776.05(1):

"A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known or reasonably appears to be a law enforcement officer."

Appellant requested, but did not receive, an instruction whereby the court would read to the jury verbatim Section 776.051(2), Florida Statutes (1975), which is "(2) A law enforcement officer, or any person whom he has summoned or directed to assist him, is not justified in the use of force if the arrest is unlawful and known by him to be unlawful."

Under this point, appellant...