State v. Anderson
| Decision Date | 30 June 1994 |
| Docket Number | No. 83009,83009 |
| Citation | 639 So.2d 609 |
| Parties | 19 Fla. L. Weekly S344 STATE of Florida, Petitioner, v. Johnnie ANDERSON, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen., Joan Fowler, Sr. Asst. Atty. Gen., Bureau Chief, and Michelle A. Konig, Asst. Atty. Gen., West Palm Beach, for petitioner.
Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.
We have for review Anderson v. State, 629 So.2d 960 (Fla. 4th DCA 1993), in which the Fourth District Court of Appeal certified its decision as being in conflict with McBride v. State, 604 So.2d 1291 (Fla. 3d DCA 1992). We have jurisdiction 1 and quash the decision under review.
Johnnie Anderson was convicted of possession of cocaine and resisting arrest without violence. In connection with the resisting arrest charge, the defense took the position that there was insufficient evidence of a lawful arrest. The trial court refused to direct a verdict on the resisting arrest count but instead instructed the jury that "effecting a lawful arrest constitutes lawful execution of a legal duty." (Emphasis added). On appeal, the district court reversed the resisting arrest conviction. The court concluded that the modified standard instruction given in this case cannot be distinguished from the standard instruction that was found to have improperly taken the question of the validity of the defendant's arrest from the jury in Scott v. State, 594 So.2d 832 (Fla. 4th DCA 1992).
First, we agree with the State that the claim that served as the basis for reversal below was not presented to the trial court and thus was not properly preserved for appellate review. Craig v. State, 510 So.2d 857 (Fla.1987) (), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988). During the charge conference, defense counsel did not argue that the proposed resisting arrest instruction would result in a directed verdict on the issue of the legality of the arrest. The only objection voiced by defense counsel was to the modification of the third paragraph of the standard instruction "Resisting Officer Without Violence" to include the word "lawful." Fla.Std. Jury Instr. (Crim.) 196. In fact, according to the transcript, defense counsel initially urged the trial court to give the standard instruction found wanting in Scott, without modification. Although the issue we are asked to address was not properly preserved, we reach the merits in order to resolve any conflict and because the result in this case would be no different than if the procedural bar was applied.
In Scott, which served as the basis for the decision below, the defendant was charged with resisting arrest with violence but was found guilty of the lesser included offense of resisting arrest without violence. On appeal, the Fourth District reversed the conviction because Scott's jury was instructed, in accordance with the standard jury instruction on resisting arrest, that "an arrest constitutes a lawful execution of a legal duty." The district court held it was error to give the standard instruction because it had the effect of taking from the jury the question of the validity of the arrest, which is a valid defense...
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