Roger v. State

353 So. 2d 933, 1978 Fla. App. LEXIS 15013

• Court: District Court of Appeal of Florida
• Decided: January 10, 1978
• Docket: No. 76-2174
• Status: Published

Opinion

PER CURIAM.

This is an appeal from an adjudication of guilty of conspiracy, attempted kidnapping, attempted robbery and resisting arrest with violence. The brief and argument of the appellant are addressed only to the convictions for conspiracy and attempted kidnapping.

Appellant’s first point is directed to the constitutionality of Section 787.01, Florida Statutes (1975), which defines the crime of kidnapping.¹ Appellant urges that the statute is overbroad and is in violation of the due process clause and the Fourteenth Amendment. Our review of the record shows that no motion to dismiss the information for attempted kidnapping was made in the trial court. See Fla.R.Crim.P. 3.190. Also, there is no showing that the claim of unconstitutionality was presented to the trial court other than by way of a motion for judgment of acquittal made at the close of the State’s evidence or any showing that such motion was passed upon by that court. We, therefore, hold that it may not be presented for the first time on this appeal. Cf. Caves v. State, 302 So.2d 171 (Fla. 2d DCA 1974).

Appellant’s second point urges that the finding of guilty of conspiracy was not supported by the evidence. Our review of the record shows that this point is without merit.

Affirmed.

1 . It should be noted that if the constitutionality had been properly raised, this appeal would be within the jurisdiction of the Supreme Court of Florida. See Art. V, § 3(b)(1), Fla.Const.