LEONARD v. STATE (2009)

District Court of Appeal of Florida,First District.

Derricko LEONARD, Appellant, v. STATE of Florida, Appellee.

No. 1D07-4109.

Decided: February 12, 2009

Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant. Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.

We agree with the parties that because the knowledge element for the charge of resisting arrest without violence was disputed at trial, the trial court committed fundamental error by failing to instruct the jury on that element. See Harris v. State, 935 So.2d 1259, 1262 (Fla. 5th DCA 2006) (finding the failure to instruct the jury on the knowledge element of resisting an officer without violence warrants reversal when the defendant presented evidence that he was unaware he was struggling with officers). Therefore, we reverse Appellant's conviction for resisting arrest without violence and remand for a new trial on that charge. Because our reversal affects the sentence for Appellant's remaining conviction of cocaine possession, we reverse the sentence on the remaining conviction and remand for resentencing.

AFFIRMED in part; REVERSED in part and REMANDED with instructions consistent with this opinion.

HAWKES, C.J.

WEBSTER, and DAVIS, JJ., concur.

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