Marino v. State

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

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.