STATE of Florida, Petitioner, v. Ernie Ray HOLLEY, Respondent, 480 So. 2d 94

OVERTON, Justice. This is a petition to review Holley v. State, 464 So.2d 578 (Fla. 1st DCA 1984), in which the district court held that the trial judge erred in instructing the jury on self-defense because he failed to instruct that a person may defend himself against the use of unlawful or excessive force even when being arrested. After so holding, the district court certified the following question as one of great public importance: Is Florida Standard Jury Instruction (Criminal) 3.04(

d) a correct statement of the law in light of Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981), review denied, 412 So.2d 470 (Fla.1982), and Allen v. State, 424 So.2d 101 (Fla. 1st DCA 1982), review denied, 436 So.2d 97 (Fla.1983)? Id. at 579. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We find, as the state concedes, that standard jury instruction 3.04(d), as it existed at the time of this trial, did not properly state the law when self-defense is asserted as an affirmative defense to the charge of resisting arrest with violence. We approve the decision of the district court and note that this Court has subsequently modified Florida Standard Jury Instruction 3.04(

d) to state the law correctly. Holley was charged with and convicted of two counts of aggravated assault with a firearm, resisting arrest with violence, and two counts of armed robbery. All charges arose from Holley’s arrest at an agricultural inspection station for carrying cannabis and his subsequent escape. At trial, Holley contended that the agricultural inspector threatened him with a knife in the course of his arrest.

During the instruction conference, Holley’s trial counsel requested á jury instruction based on the First District Court’s decision in Ivester, advising the jury that an arrestee may defend himself against the unlawful or excessive force used by a law enforcement officer. Denying the request, the trial judge instructed the jury generally as to self-defense and concluded with that portion of Florida Standard Jury Instruction 3.04(d), which, as it existed at the time of trial, stated: “A person is never justified in the use of any force to resist an arrest.” In Ivester, the district court construed

section 776.051(1), Florida Statutes (Supp. 1974), which provides that a person is not justified in the use of force to resist a known law enforcement officer, in pari materia with

section 776.012, Florida Statutes (Supp.1974), which provides in part: “A person is justified in the use of force ... against another when ... he reasonably believes that such conduct is necessary to defend himself ... against such other’s imminent use of unlawful force.” The district court concluded: The effect of reading these statutes in pari materia is to permit an individual to defend himself against unlawful or excessive force, even when being arrested.

This view is consistent with the position taken by other jurisdictions that have been confronted with questions relating to statutes similar to sections 776.-012, 776.051 and 848.01, Florida Statutes. 398 So.2d at 930 (citations omitted). We agree with the decisions of the First District Court of Appeal in Ivester, Allen, and the instant case. As the state concedes, while a defendant cannot use force to resist an arrest, he may resist the use of excessive force in making the arrest.

Our holding is consistent with our recently modified standard jury instructions set forth in Florida Bar re Standard Jury Instructions (Criminal Cases), 477 So.2d 985 (Fla.1985). We also agree with the district court that the error of the jury instruction was not harmless. Unlike Allen, this record contains conflicting evidence relating to alleged threats with a knife by a law enforcement agent. We reject as without merit Holley’s claim that this Court should also reverse his conviction for aggravated assault, concluding the erroneous instruction applies only to the resisting arrest charge.

For the reasons expressed, we approve the decision of the district court. It is so ordered. ADKINS, McDonald and EHRLICH, JJ., concur. BOYD, C.J., concurs in part and dissents in part with an opinion, in which SHAW, J., concurs. .

Section 776.051(1) and

section 776.012 have remained unchanged to date. . The standard jury instruction now reads: A person is not justified in using force to resist an arrest by a law enforcement officer who is known, or reasonably appears to be a law enforcement officer. However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend himself (or another), but only to the extent he reasonably believes such force is necessary.