TIMOTHY ERVIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Ervin was convicted of attempted dealing in stolen property, but the Florida appellate court reversed, holding that because the statute defining dealing in stolen property already includes the term "endeavors" (equivalent to "attempts"), there can be no separate crime of attempt to deal in stolen property.
The conviction is reversed because there is no separate crime of attempted dealing in stolen property. When a statute's definition of the major offense charged includes the attempt to commit that act, there can be no separate crime of attempt. The word "endeavors" in the dealing in stolen property statute is equivalent to "attempts," so the statute already encompasses both the completed act and the attempt.
[1] A crime defined by a statute that includes the word "endeavors" or "attempts" does not have a separate lesser included offense of attempt.
[2] A conviction for a crime that does not exist under state law is fundamental error.
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Join FLexlaw to unlock all legal intelligence“When the definition of the major offense charged includes the attempt to commit that act, there can be no separate crime of attempt.”
Establishes the core legal principle that governs this case—the statute's inclusion of 'endeavors' already encompasses attempt.
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Join FLexlaw to unlock all legal intelligenceErvin was charged with dealing in stolen property under section 812.019, Florida Statutes, which prohibits anyone from trafficking in or "endeavoring"…
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PER CURIAM.
Timothy Ervin appeals his conviction and sentence for attempted dealing in stolen property, contending that the conviction is void as there is no such crime under Florida law. We agree and reverse.
Appellant was charged with dealing in stolen property in violation of section 812.-019, Florida Statutes (1979). Section 812.-019 provides: “(1) Any person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree . . .. ” (Emphasis added.)
The trial court instructed the jury that an attempt to commit the crime charged constituted a lesser included offense of dealing in stolen property, defined the “lesser included crime,” instructed on the penalties for the “crime,” and included a verdict form for this “crime” in the prepared verdict forms submitted to the jury. When the jury subsequently indicated confusion as to the difference between the charged offense and an attempt to commit that offense, the trial court reinstructed them on the elements of both “crimes.” The jury ultimately returned a verdict finding appellant guilty of “attempted dealing in stolen property,” and appellant was adjudicated guilty of the “offense” and sentenced to five years in prison.
This court held in Miles v. State, 374 So. 2d 1167 (Fla. 2d DCA 1979), that the legislature’s use of the word “endeavors” in the theft statute, section 812.014(1), Florida Statutes (Supp.1978), was equivalent to the use of the word “attempts” and that to endeavor to do something means to make an attempt to do it.
When the definition of the major offense charged includes the attempt to commit that act, there can be no separate crime of attempt. State v. Thomas, 362 So. 2d 1348 (Fla.1978); Miles v. State, supra; McAbee v. State, 391 So. 2d 373 (Fla. 2d DCA 1980).
Although at trial appellant failed to object to the instruction on attempted dealing in stolen property, he is nonetheless entitled to raise the issue on appeal because it constitutes fundamental error. Fundamental error is defined as error which goes to the foundation of the case or to the merits of the cause of action. Vogel v. State, 365 So. 2d 1079 (Fla. 1st DCA 1979); McAbee v. State, supra. That doctrine applies to the instant case because there is no such crime as attempted dealing in stolen property.
For the above reasons, appellant’s judgment and sentence are REVERSED and the cause REMANDED with directions to discharge appellant.
SCHEB, C. J., and BOARDMAN and OTT, JJ., concur.
PER CURIAM.
Rehearing and clarification are denied. However, in view of the First District’s certification to the Florida Supreme Court in Sykes v. State, 397 So. 2d 911, No. UU-123 (Fla. 1st DCA, 1981), of the identical issue before us here, we hereby certify the same question:
When a trial court, following what it believes to be the requirements of the law, charges the jury on attempted grand theft under Sections 777.04(1) and 812.-014, Florida Statutes, without objection, and the jury returns a verdict of guilty of attempted grand theft based upon evidence supporting a conviction for that offense, notwithstanding that the evidence would also support a conviction of grand theft, is the defendant entitled to be discharged?
SCHEB, C.J., and BOARDMAN and OTT, JJ., concur.
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Keel v. State, 438 So. 2d 850 (Fla. 1st DCA 1983)…atutes, from the theft statute, section 812.014, Florida Statutes, involved in Sykes v. State, 397 So. 2d 991 (Fla. 1st DCA 1981) was incorrect. We adhere to our earlier opinion and deny the motion. As support, appellant points to: Ervin v. State, 410 So. 2d 510 (Fla. 2d DCA 1981) in which the district court construed section 812.019, Florida Statutes, which pertains to dealing in stolen property; Hestor v. State, 363 So. 2d 26 (Fla. 4th DCA 1978), in which section 918.14, Florida Statutes, relating to tamp…
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Dixon v. State, 559 So. 2d 354 (Fla. 1st DCA 1990)…se is fully proved by proving such attempt, and there is no separate crime of attempt.” State v. Sykes, 434 So. 2d 325, 327 (Fla.1983) (construing Section 812.014, Florida Statutes (1977), proscribing theft and grand theft). See also Ervin v. State, 410 So. 2d 510 (Fla. 2d DCA 1981) (no separate crime of attempt under section 812.-019), approved in pertinent part, quashed in part, 435 So. 2d 815 (Fla.1983). Moreover, by defining a crime so that one of the ways it may be proved is by showing that the accused e…
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State v. Ervin, 435 So. 2d 815 (Fla. 1983)…D, Justice. This cause is before the Court on petition for review of the decision of the District Court of Appeal, Second District, which the district court has certified as having passed upon a question of great public importance. Ervin v. State, 410 So. 2d 510 (Fla. 2d DCA 1981). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The certified question is almost the same as that certified by the first district in Sykes v. State, 397 So. 2d 991 (Fla. 1st DCA 1981). The question is: where a defendant ha…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Thomas, 362 So. 2d 1348 (Fla. 1978)
- Miles v. State, 374 So. 2d 1167 (Fla. 2d DCA 1979)
- Vogel v. State, 365 So. 2d 1079 (Fla. 1st DCA 1979)
- McABEE v. State, 391 So. 2d 373 (Fla. 2d DCA 1980)