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Wimbley v. State

District Court of Appeal of Florida, Fourth District
Oct 10, 1990
567 So. 2d 560 (Fla. Dist. Ct. App. 1990)

Opinion

No. 89-1652.

October 10, 1990.

Appeal from the Circuit Court, Broward County, Mel Grossman, J.

Richard L. Jorandby, Public Defender, and B. Sue Foreman, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Miles E. Ferris, Asst. Atty. Gen., West Palm Beach, for appellee.


The appellant was convicted of resisting arrest without violence and escape. The trial court instructed the jury that the police were in lawful execution of a legal duty at the time the alleged offenses took place. We agree with appellant that the trial court erred in not submitting the issue of the legality of defendant's arrest to the jury. See Williams v. State, 511 So.2d 740 (Fla. 5th DCA 1987); Smith v. State, 399 So.2d 70 (Fla. 5th DCA 1981). This error requires reversal for a new trial.

We do not agree with appellant that the evidence was insufficient to sustain the verdicts of the jury. In addition, and to avoid problems on retrial, we note that under the evidence submitted an instruction on the defense of necessity was warranted; that evidence of the circumstances of appellant's later arrest should not have been admitted; and that the trial court should have used the standard jury instructions to define the elements of the offense of escape.

ANSTEAD, GUNTHER and WARNER, JJ., concur.


Summaries of

Wimbley v. State

District Court of Appeal of Florida, Fourth District
Oct 10, 1990
567 So. 2d 560 (Fla. Dist. Ct. App. 1990)
Case details for

Wimbley v. State

Case Details

Full title:DEREK L. WIMBLEY, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: Oct 10, 1990

Citations

567 So. 2d 560 (Fla. Dist. Ct. App. 1990)

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