Malik Mocombe v. The State of Florida

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 14, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D23-184 Lower Tribunal No. F21-13630B ________________

Malik Mocombe, Appellant,

vs.

The State of Florida, Appellee.

An appeal from the Circuit Court for Miami-Dade County, Milton Hirsch, Judge.

Eugene F. Zenobi, Regional Counsel, and Kristen Kawass, Assistant Regional Counsel, for appellant.

Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for appellee.

Before LOGUE, C.J., and MILLER, and LOBREE, JJ.

MILLER, J. Appellant, Malik Mocombe, appeals from an order denying his Florida

Rule of Criminal Procedure 3.190(c)(4) motion to dismiss one count of

unlawful use or attempted use of an antishoplifting or inventory control device

countermeasure within any premises used for a retail establishment, in

violation of section 812.015(7), Florida Statutes (2022). Because the

undisputed facts failed to establish that he used or attempted to use the

pocketknife recovered from his person, let alone that the instrument itself

satisfied the plain and unambiguous statutory definition of “any item or device

which is designed, manufactured, modified, or altered to defeat any

antishoplifting or inventory control device,” we are constrained to reverse and

remand with instructions to dismiss the challenged charge. § 812.015(1)(i),

Fla. Stat.; Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr.,

Inc., 681 So. 2d 826, 830 (Fla. 1st DCA 1996) (“When the language of a

statute is clear and unambiguous and conveys a clear and definite meaning,

there is no occasion for resorting to the rules of statutory interpretation and

construction; the statute itself must be given its plain and obvious meaning.”)

(quoting C.S. v. S.H., 671 So. 2d 260, 268 (Fla. 4th DCA 1996)); State v.

Blunt, 744 So. 2d 1258, 1259 (Fla. 3d DCA 1999) (holding aluminum foil

used to defeat inventory device failed to satisfy requisite statutory definition

of antishoplifting or inventory control device countermeasure because it was

2 not “designed, manufactured, modified, or altered”); see also Cenatis v.

State, 120 So. 3d 41, 44 (Fla. 4th DCA 2013) (emphasizing plain wording of

applicable definition).

Reversed and remanded.