Opinion
No. 91-1164.
December 17, 1991.
Appeal from the Circuit Court for Dade County, Sidney B. Shapiro, J.
Bennett H. Brummer, Public Defender, and Robert Kalter, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and BASKIN and GODERICH, JJ.
CONFESSION OF ERROR
In one count of the information, defendant was charged with battery on a law enforcement officer. Defendant requested a jury instruction on simple battery as a lesser included offense; the trial court denied the request. Over defendant's objection, the trial court instructed the jury on resisting arrest with violence as a lesser included offense. The jury found defendant guilty of resisting arrest with violence.
The state correctly concedes that the trial court erred in failing to instruct the jury on simple battery as a lesser included offense of the charge of battery on a law enforcement officer. State v. Wimberly, 498 So.2d 929 (Fla. 1986). Additionally, the trial court erred in instructing the jury on resisting arrest with violence, not a lesser included offense of battery on a law enforcement officer. State v. Henriquez, 485 So.2d 414 (Fla. 1986); see State v. Carpenter, 417 So.2d 986 (Fla. 1982). We therefore reverse the conviction for resisting arrest with violence.
Reversed and remanded for a new trial.