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481 So. 2d 972

481 So.2d 972

11 Fla.L.Weekly 217

Cardwell v. State

District Court of Appeal of Florida

Decided January 17, 1986

District Court of Appeal of Florida · decided 1986-01-17

Cited by 1 later decisions — most recently February 1999

1 state decisions

Relies on 402 So. 2d 606 - State v. Hawkins · State v. Heathcoat · 395 So. 2d 1207 - Mellins v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1986-01-17

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HALL, Judge.

¶1Glen Dale Cardwell appeals his conviction for resisting an officer with violence and aggravated assault. We affirm the judgment as to resisting an officer with violence but reverse appellant’s conviction for aggravated assault.

¶2Appellant argues that the court improperly rejected his proposed jury instruction concerning the defense of intoxication against the charge of aggravated assault, which is a specific intent crime. State v. Shorette, 404 So.2d 816 (Fla.2d DCA 1981). We agree.

¶3Evidence presented at trial established that appellant was approached by three police officers who suspected him of burglarizing his ex-wife’s residence. On resisting their attempts to arrest him, appellant was physically thrown to the ground and an altercation between appellant and the officers ensued.

¶4At trial appellant requested that the trial judge instruct the jury on intoxication as a defense to the charge of aggravated assault. The trial court declined. One of the apprehending officers testified that he detected an odor of alcohol while scuffling with appellant, while another of the officers stated on cross-examination that he believed appellant was intoxicated.

¶5In light of this evidence, the trial court committed reversible error in not issuing an instruction on intoxication. We believe that the testimony at trial of two of the apprehending officers created a sufficient question for the jury as to appellant’s possible defense of intoxication to the requisite formation of specific intent.

¶6Any evidence of appellant’s intoxication entitled him to an appropriate jury instruction. Parker v. State, 471 So.2d 1352 (Fla.2d DCA 1985).

¶7Even where the evidence of intoxication derives from the cross-examination of the state’s witness, appellant is entitled to a jury instruction on the defense of voluntary intoxication. Heathcoat v. State, 430 So.2d 945 (Fla.2d DCA), aff'd, 442 So.2d 955 (Fla.1983); Mellins v. State, 395 So.2d 1207 (Fla. 4th DCA), review denied, 402 So.2d 613 (Fla.1981).

¶8Accordingly, appellant’s judgment and sentence for aggravated assault are reversed and remanded for retrial.

RYDER, C.J., and CAMPBELL, J., concur.
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