STATE OF FLORIDA, PETITIONER,
v.
TIMOTHY ERVIN, RESPONDENT
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BOYD, 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 has been convicted of a nonexistent offense of attempt, having failed to object to an attempt instruction, is the defendant entitled to be discharged? We hold that such a conviction must be reversed even though the instruction was not objected to; but we also hold that respondent may be retried. We therefore answer the certified question in the negative. See State v. Sykes, 434 So. 2d 325 (Fla.1983); Achin v. State, 436 So. 2d 30 (Fla.1982).
The decision of the district court is approved in part and quashed in part with directions to remand for a new trial.
It is so ordered.
ALDERMAN, C.J., and ADKINS, OVER-TON and EHRLICH, JJ., concur. McDONALD, J., dissents.
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Dixon v. State, 559 So. 2d 354 (Fla. 1st DCA 1990)…(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 endeavored to commit the crime, “the legislature has negated any intention of allowing the general attempts statute to operate with ref…
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Blake v. State, 444 So. 2d 1054 (Fla. 1st DCA 1984)…is irrelevant to the issue of whether a person has trafficked in stolen property. As noted by the state, the [*1055] crime of dealing in stolen property is complete upon the attempt. Ervin v. State, 410 So. 2d 510 (Fla. 2d DCA 1981), aff'd in part, 435 So. 2d 815 (Fla.1983). That is, a person violates section 812.019(1), if he either traffics in, “or endeavors to traffic in,” property he knows or should know was stolen. Moreover, to “traffic” means not only “[t]o sell, transfer, distribute, dispense, or othe…
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Sch. Bd. of Miami-Dade Cnty. v. City of Miami Beach, 273 So. 3d 1125 (Fla. 3d DCA 2019)
Authorities Cited
- State v. Sykes, 434 So. 2d 325 (Fla. 1983)
- Achin v. State, 436 So. 2d 30 (Fla. 1982)
- Ervin v. State, 410 So. 2d 510 (Fla. 2d DCA 1981)
- Sykes v. State, 397 So. 2d 991 (Fla. 1st DCA 1981)