White v. State, 91-3959

• Decision Date: 17 May 1993
• Docket Number: No. 91-3959,91-3959
• Citation: 618 So.2d 354
• Parties: 18 Fla. L. Week. D1279 Calvin Napoleon WHITE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 354

618 So.2d 354

18 Fla. L. Week. D1279

Calvin Napoleon WHITE, Appellant, v. STATE of Florida, Appellee.

No. 91-3959.

District Court of Appeal of Florida First District.

May 17, 1993.

Nancy A. Daniels, Public Defender, Abel Gomez, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Charlie McCoy, Asst. Atty. Gen., Tallahassee, for appellee.

MICKLE, Judge.

Appellant, Calvin Napoleon White, originally was charged by information with 1) battery on a law enforcement officer (Officer Sackett) (Count I), 2) resisting arrest with violence (Officer Perry) (Count II), and 3) resisting without violence (Count V). Just before trial, the state dropped Count V. Appellant was tried before a jury, which found him guilty of the charges of battery and resisting arrest with violence. We affirm the conviction of battery on an officer. The first issue is whether the trial court reversibly erred in failing to give a requested instruction as to Count II 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 sentencing authority, we vacate Appellant's sentences on both charges and remand for the trial court to reconsider its sentencing options in light of our holding and the subsequent decisions discussed, infra. Stewart v. State, 614 So.2d 690 (Fla. 2d DCA1993); Brown v. State, 613 So.2d 558 (Fla. 2d DCA1993) (reversing and remanding habitual offender sentence, where appellate court was unable to determine whether trial judge had construed permissive sentencing provision to be mandatory); Smith v. State, 574 So.2d 1195, 1197 (Fla. 3d DCA1991).

Section 843.01, Florida Statutes (1989), provides in pertinent part:

Whoever knowingly and willfully resists, obstructs, or opposes any officer ... in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the ... officer is guilty of a third-degree felony.

Count II of the information alleged in part:

CALVIN NAPOLEON WHITE ..., on the 18th day of April, 1991, in the County of Leon and the State of Florida, did unlawfully, knowingly, and willfully resist, obstruct or oppose a law enforcement officer, TALLAHASSEE POLICE OFFICER CHUCK PERRY, in the lawful execution of a legal duty, EFFECTING AN ARREST, by offering violence or by doing violence to the officer by GRABBING, SWINGING FISTS, STRUGGLING, FIGHTING, contrary to Section 843.01, Florida Statutes.

Fla.R.Crim.P. 3.510(b) provides as follows:

Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:

* * * * * *

(b) any offense which as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

In Ferrell, we said "[r]esisting an officer without violence is not a necessarily lesser included offense of resisting an officer with violence." 544 So.2d at 337. Instead, resisting without violence "may become a lesser included [offense] depending upon the allegations of the charging document and the proof presented at trial." Id.; Benjamin v. State, 462 So.2d 110 (Fla. 5th DCA1985). In Ferrell, the charging document alleged the defendant had resisted an officer "by offering or doing violence ... by fighting ..." Ferrell requested the trial court to instruct the jury on the offense of resisting an officer without violence. The court declined to do so. The jury was instructed on the offense of resisting with violence, and a verdict of guilty resulted. 544 So.2d at 337. Noting that the evidence at trial included testimony that Ferrell had verbally resisted the officers and had pushed one and tried to break loose from another officer by "thrashing," we found "[t]hese descriptions of appellant's conduct could support the lesser charge of resisting an officer without violence, as could the allegations of the charging document." The cause was reversed and remanded, based on the failure to instruct as to resisting without violence. Id. at 338.

We find the case sub judice is analogous to Ferrell. The state presented evidence that Tallahassee police officers Sackett and Perry were dispatched to the housing project site of a reported beating (possibly armed) of a female victim by a male. Officer Sackett immediately recognized Appellant as an individual who was wanted on several outstanding warrants. To Officer Perry, Appellant matched the description given of the alleged perpetrator of the disturbance.

Officer Perry intended to arrest Appellant, but a foot chase ensued for several blocks until Appellant stopped and turned around, facing the officer, who carried a baton and issued the command to "Get down, Calvin. Get down. You are under arrest." Officer Perry grabbed Appellant and tried to push him down, whereupon Appellant lunged at Perry and "continued to struggle." Pursuant to normal departmental procedures, the officer struck Appellant on the outer thigh. Officer Perry described this encounter with Appellant as follows:

He actually grabbed me and we were struggling. We were going around and 'round, and he was not passively resisting. He was actively resisting and trying to push me away. We were both pretty tired at that time, so he didn't all-out attack, but it was an active fight.

In 10-20 seconds, Officer Sackett ran over and tackled Appellant who, at six feet and three inches tall and 265 pounds, is much bigger than either officer. Sackett and Appellant fell to the ground. Perry grabbed an arm, but Appellant "was actively fighting as hard as he could to keep from having the handcuffs put on." A crowd, hostile to the two police officers, had gathered, and Perry temporarily lost his handcuffs. An individual named Eddie Mitchell was cheering Appellant during the pursuit. As Sackett tried to restrain Appellant, Mitchell hit the officer from behind, in back of the head, as Appellant got an arm free and was able to direct short jabs into the officer's groin area. After being struck by Mitchell, Officer Sackett backed off. Appellant got to his feet and struck Sackett again, knocking the officer back into the crowd. The crowd helped Appellant pass through it and yelled "Run, Calvin, run" as he fled. The conviction of battery on a law enforcement officer relates to Appellant's acts upon Officer Sackett and is not contested here.

Officer Perry was left on his back, defending himself against five or six men who were striking him in the head, inflicting a wound that required three stitches. As Sackett attempted to get the men off Perry, a back-up officer arrived with a trained dog, which he released and followed into the crowd. Believing the situation was under control, Sackett pursued Appellant into a nearby apartment and engaged in a prolonged physical struggle.

At trial, the defense produced two witnesses. Frederick Jackson had run outside from an apartment "to see what the commotion was" and saw the crowd. He testified that the officers had Appellant on the ground and were hitting him with billy sticks. Eddie Mitchell pulled the officers away from Appellant. Jackson then saw Appellant run from the scene and enter Jackson's sister's unlocked apartment. At the time of the incident, Jackson neither knew Appellant nor knew anything about him.

Toya Strong witnessed the incident from her porch and saw the police chasing Appellant. She testified that after Appellant stumbled, an officer fell atop him and the two "tussled for a while" until an officer with a dog arrived. She said the officers hit Appellant more than once with "the police sticks that they have on their side." She thought Appellant once said, "All right, you've got me" or something similar as he lay on his back. After Appellant got up and began running away, an officer with his gun out pursued him.

Appellant concedes the state's evidence could be viewed as establishing the use of violence against Officer Sackett. He challenges only the refusal to give the requested instruction relating to his conduct toward Officer Perry. We are compelled to agree with Appellant that the evidence, if accepted by the jury, could support a verdict of resisting without violence. In reversing a conviction and remanding for a new trial based on the trial court's failure to give an appropriate jury instruction in Solomon v. State, 436 So.2d 1041 (Fla. 1st DCA1983), we stated:

A defendant is entitled to a jury instruction on the theory of his defense if there is evidence in the record to support it, regardless of how weak or improbable it may be.

See Eberhardt v. State, 550 So.2d 102, 105 (Fla. 1st DCA 1989), rev. den., 560 So.2d 234 (Fla.1990) (defendant was entitled to jury instruction where any trial evidence, however "marginal," supported his theory of defense); Holley v. State, 423 So.2d 562, 564 (Fla. 1st DCA1982). There is evidence indicating Appellant responded to Officer Perry in a non-violent manner. Because the omitted instruction involves the next lesser crime, it was per se reversible error not to give the instruction here. State v. Abreau, 363 So.2d 1063 (Fla.1978); Tice v. State, 569 So.2d 1327, 1328 (Fla. 2d DCA1990).

Appellant's eventual sentence may very well differ as a result of our holding. Our review of the sentencing hearing transcript indicates some dispute between counsel involving the extent of the trial court's sentencing authority. A number of subsequent decisions, discussed infra, have clarified the applicable law. The sentencing colloquy suggests the trial court may have misapprehended, and therefore limited unnecessarily, its broad discretion in sentencing Appellant....