Meeks v. State , 369 So. 2d 109 ( 1979 )

369 So.2d 109 (1979)

David Michael MEEKS, Appellant,
v.
STATE of Florida, Appellee.

No. LL-35.

District Court of Appeal of Florida, First District.

April 4, 1979.

Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.

PER CURIAM.

Meeks appeals his conviction of battery on a law enforcement officer and sentence of six months to three years. Appellant alleges that the trial court erred in denying the motion to dismiss the information on the grounds that the officers were not in the lawful performance of their duties at the time of the offense. § 784.07, Fla. Stat. (1977). The batteries occurred while the officers were executing an allegedly illegal misdemeanor warrant. However, just as the appellant is not justified in using force to resist an unlawful arrest pursuant to Sections 843.01 and 776.051(1), Florida Statutes (1977), neither is he justified in committing a battery to resist an unlawful arrest pursuant to Section 784.07, Florida Statutes (1977). See Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978). Under these unique facts, Sections 784.07 and 843.01 overlap in their application and the appellant was properly chargeable under either statute. Accordingly, the judgment is AFFIRMED.

MILLS, Acting C.J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.