Wimbley v. State , 567 So. 2d 560 ( 1990 )

567 So.2d 560 (1990)

Derek L. WIMBLEY, Appellant,
v.
STATE of Florida, Appellee.

No. 89-1652.

District Court of Appeal of Florida, Fourth District.

October 10, 1990.

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.

PER CURIAM.

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.