Kirk v. State

W. SHARP, Judge.

Kirk appeals from a judgment adjudicating her guilty of resisting an officer with violence and attempted battery on a law enforcement officer,1 after a jury trial. She argues on appeal that the conviction for resisting arrest with violence should be reversed and the cause remanded for trial because the trial court failed to instruct the jury on a permissive lesser included offense: resisting arrest without violence.2 We agree.

At trial, the defense requested an instruction on resisting arrest without violence. The trial court refused, relying on Espinosa v. State, 668 So.2d…