Marino v. State

District Court of Appeal of Florida

Marino v. State

392 So. 2d 36, 1980 Fla. App. LEXIS 17897

CourtDistrict Court of Appeal of Florida

DecidedDecember 17, 1980

DocketNo. 79-1995

StatusPublished

Cited by1 cases

This text of 392 So. 2d 36 (Marino v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Marino v. State, 392 So. 2d 36, 1980 Fla. App. LEXIS 17897 (Fla. Ct. App. 1980).

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Opinion

CAMPBELL, Judge.

The appellant appeals from a conviction of trafficking in stolen property in violation of section 812.019(1), Florida Statutes (1979). Appellant solicited the sale of property, the subject of the charge, with the belief that it was in fact stolen. Actually, the owner furnished the property to law enforcement officers in order for them to sell it to appellant.

Appellant asserts for the first time on this appeal that section 812.028(3), Florida Statutes (1979), is unconstitutionally over-broad in violation of the first amendment of the United States Constitution and article I, sections 4 and 9, of the Florida Constitution. Section 812.028(3) precludes the defendant from raising as a defense to section 812.-019(1) the fact that the property was not stolen. Appellant cites as support State v. Tomas, 370 So.2d 1142 (Fla.1979). Our supreme court did not address the application of section 812.028(3) in its consideration of that case.

Inasmuch as appellant here did not raise the constitutional issue in the trial court and as we find that it does not constitute fundamental error, the question has been waived and is not subject to being addressed by this court.

The appellant raised two other issues which we consider to be without merit. Appellant’s conviction is therefore affirmed.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.

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CAMPBELL, Judge.

The appellant appeals from a conviction of trafficking in stolen property in violation of section 812.019(1), Florida Statutes (1979). Appellant solicited the sale of property, the subject of the charge, with the belief that it was in fact stolen. Actually, the owner furnished the property to law enforcement officers in order for them to sell it to appellant.

Appellant asserts for the first time on this appeal that section 812.028(3), Florida Statutes (1979), is unconstitutionally over-broad in violation of the first amendment of the United States Constitution and article I, sections 4 and 9, of the Florida Constitution. Section 812.028(3) precludes the defendant from raising as a defense to section 812.-019(1) the fact that the property was not stolen. Appellant cites as support State v. Tomas, 370 So.2d 1142 (Fla.1979). Our supreme court did not address the application of section 812.028(3) in its consideration of that case.

Inasmuch as appellant here did not raise the constitutional issue in the trial court and as we find that it does not constitute fundamental error, the question has been waived and is not subject to being addressed by this court.

The appellant raised two other issues which we consider to be without merit. Appellant’s conviction is therefore affirmed.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.

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392 So. 2d 36, 1980 Fla. App. LEXIS 17897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marino-v-state-fladistctapp-1980.

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