CARMINE J. MARINO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a constitutional challenge to a statute, not raised in the trial court and not constituting fundamental error, is waived on appeal.
Appellant was convicted of trafficking in stolen property. The owner furnished the property to law enforcement to sell to the appellant, who believed …
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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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Citator
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Dorian Fletcher v. State, 472 So. 2d 537 (Fla. 5th DCA 1985)…ute below on those grounds and we find no fundamental error.5 Smith v. Brantley, 400 So. 2d 443 (Fla.1981); Hegeman-Harris Co. v. Allstate Pipe Supply Co., 400 So. 2d 1245 (Fla. 5th DCA), review dismissed, 411 So. 2d 380 (Fla.1981); Marino v. State, 392 So. 2d 36 (Fla. 2d DCA 1981); Chatman v. State, 393 So. 2d 557 (Fla. 4th DCA 1980). AFFIRMED. ORFINGER, J., concurs. DAUKSCH, J., dissents with opinion. . Section 790.001(13), Florida Statutes (1983): "Weapon” means any dirk, metallic knuckles, slungshot…
Authorities Cited
- State v. Tomas, 370 So. 2d 1142 (Fla. 1979)