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McBride v. State

McBride v. State, 604 So. 2d 1291 (Fla. Dist. Ct. App. 1992)
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Court
District Court of Appeal of Florida · State Appellate Courts
Decided
September 15, 1992
Docket
No. 92-666
Judges
Schwartz, C.J., and Barkdull and Ferguson
Citations
604 So. 2d 12911992 WL 222003
Cited by 8 2 descriptions by later courts

Opinion

604 So.2d 1291 (1992)

Diane McBRIDE, Appellant,

v.

The STATE of Florida, Appellee.

No. 92-666.

District Court of Appeal of Florida, Third District.

September 15, 1992.

*1292 Friend, Fleck & Gettis, South Miami, for appellant.

Robert A. Butterworth, Atty. Gen. and Richard L. Polin, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and BARKDULL and FERGUSON, JJ.

SCHWARTZ, Chief Judge.

We reject both points raised in this appeal from a conviction for resisting arrest without violence. First, the trial court correctly granted the state's request to instruct the jury as to that crime as a permissive lesser included offense of resisting arrest with violence, which was alleged in the information. State v. Johnson, 601 So.2d 219 (Fla. 1992); Tice v. State, 569 So.2d 1327 (Fla. 2d DCA 1990).

Second, the court did not err in charging the jury, in accordance with Florida Standard Jury Instruction (Criminal) Resisting Officer Without Violence, and section 901.15, Florida Statutes (1991) that " an arrest and detention constitutes [the] lawful execution of a legal duty." [e.s.] This generic and perfectly correct statement of law did not involve the vice of case-specificity which was involved in Wimbley v. State, 567 So.2d 560, 561 (Fla. 4th DCA 1990), in which the court stated that "the police were in lawful execution of a legal duty at the time the alleged offenses took place " [e.s.], and Dion v. State, 564 So.2d 618, 618 (Fla. 4th DCA 1990), where the jury was told that "the police officer was acting lawfully when he arrested appellant. " [e.s.] See also Kirschenbaum v. State, 592 So.2d 1272 (Fla. 3d DCA 1992). On this basis, we follow Stayer v. State, 590 So.2d 25 (Fla. 4th DCA 1991), which is directly on point, and, for the same reason, disagree with Scott v. State, 594 So.2d 832 (Fla. 4th DCA 1992). [1] The distinction drawn by Judge Warner in Stayer , which was professedly unfathomable to the distinguished author of Scott , seems quite obvious to us. Moreover, McBride did not object and indeed appears to have agreed to the substance of the instruction below. See Squires v. State, 450 So.2d 208 (Fla. 1984).

Affirmed.

NOTES

[1] There appears to be no authority for Scott's departure from the earlier panel decision in Stayer without the intervention of an en banc court. See In Re Rule 9.331, 416 So.2d 1127 (Fla. 1982).

How later courts describe this case

Explanatory parentheticals written by citing courts — 2 in all; the most informative distinct ones are shown.

Cited by 8 cases

View all citing references →
1993: 31994: 21996: 12007: 12010: 119932026peak 1993 · 3

Relies on it most ⓘ

  1. Brown v. State36 So. 3d 826 (Fla. Dist. Ct. App. 2010)
  2. Anderson v. State629 So. 2d 960 (Fla. Dist. Ct. App. 1993)
  3. State v. Anderson639 So. 2d 609 (Fla. 1994)
  4. Starks v. State627 So. 2d 1194 (Fla. Dist. Ct. App. 1993)
  5. Saldana v. State634 So. 2d 201 (Fla. Dist. Ct. App. 1994)
  6. Thomas v. State970 So. 2d 460 (Fla. Dist. Ct. App. 2007)

Most recent

  1. Brown v. State36 So. 3d 826 (Fla. Dist. Ct. App. 2010)
  2. Thomas v. State970 So. 2d 460 (Fla. Dist. Ct. App. 2007)
  3. Crevitz v. State673 So. 2d 168 (Fla. Dist. Ct. App. 1996)
  4. State v. Anderson639 So. 2d 609 (Fla. 1994)
  5. Saldana v. State634 So. 2d 201 (Fla. Dist. Ct. App. 1994)
  6. Anderson v. State629 So. 2d 960 (Fla. Dist. Ct. App. 1993)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 9

DepthCaseCited by
Stayer v. State, 590 So. 2d 25 (Fla. Dist. Ct. App. 1991) 7
Scott v. State, 594 So. 2d 832 (Fla. Dist. Ct. App. 1992) 6
In re Rule 9.331, Etc., 416 So. 2d 1127 (Fla. 1982) 62
Squires v. State, 450 So. 2d 208 (Fla. 1984) 42
State v. Johnson, 601 So. 2d 219 (Fla. 1992) 23
Dion v. State, 564 So. 2d 618 (Fla. Dist. Ct. App. 1990) 17
Wimbley v. State, 567 So. 2d 560 (Fla. Dist. Ct. App. 1990) 10
Kirschenbaum v. State, 592 So. 2d 1272 (Fla. Dist. Ct. App. 1992) 4
Tice v. State, 569 So. 2d 1327 (Fla. Dist. Ct. App. 1990) 3

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