Espinosa v. State

HARRIS, Judge.

Richard Espinosa was charged with resisting an officer with violence. It was not neeessary, therefore, under Benjamin v. State, 462 So.2d 110 (Fla. 5th DCA 1985), to prove the legality of the arrest as an element of the offense.1 It was not so proved in this case. Our problem, as one might guess, is that Espinosa was convicted of resisting an officer without violence, and Benjamin makes it clear that proof of a legal arrest is an essential element of this crime. In fact, under Benjamin, it is this distinction that keeps one offense from being the lesser included offense of the…