Opinion
No. 91-2796.
June 9, 1992.
Appeal from the Circuit Court, Dade County, Arthur Maginnis, J.
Bennett H. Brummer, Public Defender and Rosa C. Figarola, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Roberta G. Mandel, Asst. Atty. Gen., for appellee.
Before LEVY, GERSTEN and GODERICH, JJ.
The defendant's conviction of resisting an officer without violence is hereby reversed and remanded for a new trial. "[T]he trial court erred in instructing the jury as a matter of law that the police officer was acting lawfully when he arrested" the defendant where the legality of the officer's actions was an issue to be determined by the jury. Dion v. State, 564 So.2d 618, 618 (Fla. 4th DCA 1990); Kirschenbaum v. State, 592 So.2d 1272 (Fla. 3d DCA 1992); see Brannen v. State, 453 So.2d 428 (Fla. 1st DCA 1984); Smith v. State, 399 So.2d 70 (Fla. 5th DCA 1981).