KENDRICK BERNARD JAMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of carjacking with a firearm, among other offenses, and challenged his conviction arguing the state failed to prove he intended to steal the vehicle and that his actions constituted attempted carjacking at most. The appellate court affirmed, holding that the motion for judgment of acquittal did not adequately preserve the issue for appeal and that sufficient evidence supported the carjacking conviction.
The court affirmed the conviction, holding that the motion for judgment of acquittal did not adequately preserve the substantive argument for appeal. Even addressing the merits, sufficient evidence supported the carjacking conviction because appellant took the car keys from the owner, excluded him from control of the vehicle, attempted to start it, and used a firearm to create fear.
[1] A motion for judgment of acquittal must specifically apprise the trial court of the alleged evidentiary deficiency to preserve the issue for appeal.
[2] The "fundamental error" doctrine does not permit raising for the first time on appeal the state's alleged failure to prove an element of a charged offense, where such cla…
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Join FLexlaw to unlock all legal intelligence“the record contains sufficient evidence from which the jury could find that appellant took the Pontiac from the person or custody of its owner when he took the car keys from the owner, excluded him from control of the Pontiac, and attempted to start the vehicle; that he intended to at, least temporarily, if not permanently, deprive the owner of possession or custody of the Pontiac; and that during the course of the taking he used force, violence, assault, or put the owner in fear by use of a firearm.”
Establishes the court's finding that sufficient evidence supported all elements of carjacking despite the vehicle not being driven away
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Join FLexlaw to unlock all legal intelligenceAppellant took car keys from the owner of a 1973 Pontiac that was blocking a stolen 1986 Cadillac. When he could not start the Pontiac, he threw the k…
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BARFIELD, C.J.
Appellant challenges his conviction of carjacking with a firearm, asserting that the trial judge erred in denying his motion for judgment of acquittal because the state failed to prove he had the intent to steal the 1973 Pontiac, and that his actions constituted, at most, attempted carjacking. We affirm.
In addition to the carjacking offense, appellant was convicted of burglary of a 1986 Cadillac, grand theft of the Cadillac, and fleeing a police officer. At the close of the state’s case, defense counsel had sought a judgment of acquittal “on the grounds that it should not go to the jury because the evidence has not been shown to be beyond and to the exclusion of every reasonable doubt that the defendant is guilty of Counts I through IV charged in the information.” The motion was denied without further discussion. The renewed motion at the close of the case was also denied.
Appellant does not challenge the other three convictions, but he contends the record demonstrates that he did not intend to steal the Pontiac, which was blocking the stolen Cadillac, and that when he could not start the Pontiac, he threw the car keys back at the Pontiac’s owner and made him move it. The state asserts that this argument was not presented to the trial court by the “bare-bones” motion for judgment of acquittal, and therefore cannot be presented for the first time on appeal, citing section 924.051(l)(b), Florida Statutes (1997), and cases from the Florida Supreme Court and from this court.1 Appellant argues that the issue was preserved by the motion for judgment of acquittal, but that in any case, it is fundamental error when the state fails to prove an element of a crime, citing K.A.N. v. State, 582 So. 2d 57 (Fla. 1st DCA 1991), and Johnson v. State, 737 So. 2d 555 (Fla. 1st DCA 1999).
We reject appellant’s contention that his motion for judgment of acquittal adequately preserved the argument that the state failed to prove all the elements of the offense of carjacking,2 and we also reject his “fundamental error” argument. A careful reading of section 812.133, Flori da Statutes (1997), undermines the assertion that his actions with regard to the Pontiac could not have constituted carjacking as a matter of law. The language in K.A.N., upon which he relies for the proposition that the state’s failure to prove all the elements of a charged offense constitutes “fundamental error” which may be raised for the first time on appeal, conflicts with the supreme court’s opinions in State v. Barber, 301 So. 2d 7 (Fla.1974), and Woods v. State, 733 So. 2d 980 (Fla.1999). His reliance on Johnson, which did not involve the issue of the state’s failure to prove the elements of an offense, is misplaced.
Even if we were to address the substantive argument presented for the first time on appeal, we would find that the record contains sufficient evidence from which the jury could find that appellant took the Pontiac from the person or custody of its owner when he took the car keys from the owner, excluded him from control of the Pontiac, and attempted to start the vehicle; that he intended to at, least temporarily, if not permanently, deprive the owner of possession or custody of the Pontiac; and that during the course of the taking he used force, violence, assault, or put the owner in fear by use of a firearm. Were we to rule on this issue, we would reject appellant’s contention that conviction of carjacking requires, in every instance, proof that the vehicle was driven away.
AFFIRMED.
WOLF, J., CONCURS. ERVIN, J., CONCURS IN RESULT.
. State v. Barber, 301 So. 2d 7 (Fla. 1974); Steinhorst v. State, 412 So. 2d 332 (Fla.1982); Ogletree v. State, 525 So. 2d 967 (Fla. 1st DCA), rev. denied, 534 So. 2d 400 (Fla. 1988); Williams v. State, 531 So. 2d 212 (Fla. 1st DCA 1988); Showers v. State, 570 So. 2d 377 (Fla. 1st DCA 1990).
. See Tillman v. State, 471 So. 2d 32 (Fla. 1985), and the opinions cited in footnote 1. See also, Archer v. State, 613 So. 2d 446 (Fla. 1993); Brumbley v. State, 350 So. 2d 827 (Fla. 1st DCA 1977); Hornsby v. State, 680 So. 2d 598 (Fla. 2d DCA 1996).
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Rosalyn Ann Sanders v. State, 765 So. 2d 778 (Fla. 1st DCA 2000)…ppellant the opportunity to retain different trial counsel. Appellant failed to preserve her insufficiency of the evidence issue, however, because she failed to file a motion for judgment of acquittal at trial raising this issue. See James v. State, 745 So. 2d 1141, 1142-48 (Fla. 1st DCA 1999); Woods v. State, 733 So. 2d 980, 984-85 (Fla.1999). Further, we have held that the state’s failure to prove all elements of a charged offense does not constitute “fundamental error” which may be raised for the first time…
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Darius Donard Price v. State, 816 So. 2d 738 (Fla. 3d DCA 2002)…d. We conclude that the taking of the car keys satisfied the “taking” element of the statute. Section 812.133, Florida Statutes (1997), does not require the accused’s successful departure from the crime scene in the victim’s car. In James v. State, 745 So. 2d 1141, 1142 (Fla. 1st DCA 1999), the court held that defendant’s “barebones” motion for judgment of acquittal was not sufficient to preserve the issue for appellate review., The court went on to say: Even if we were to address the substantive argument pr…
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Green v. State, 828 So. 2d 462 (Fla. 5th DCA 2002)…ng the car in order to drive it off. To establish the armed carjacking, the state did not even have to prove that the appellant, after entering the car, proceeded to drive off in it. Price v. State, 816 So. 2d 738 (Fla. 3d DCA 2002); James v. State, 745 So. 2d 1141 (Fla. 1st DCA 1999). While it is conceivable that a carjacking could occur with use of a crane or tow truck, following the forcible taking of the car from its possessor, and thus avoid “entry” into the vehicle, (i.e.burglary) most carjackings are, i…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Steinhorst v. State, 412 So. 2d 332 (Fla. 1982)
- Tillman v. State, 471 So. 2d 32 (Fla. 1985)
- State v. Barber, 301 So. 2d 7 (Fla. 1974)
- Woods v. State, 733 So. 2d 980 (Fla. 1999)
- Archer v. State, 613 So. 2d 446 (Fla. 1993)
- Williams v. State, 531 So. 2d 212 (Fla. 1st DCA 1988)
- In the Interest of K.A.N. v. State, 582 So. 2d 57 (Fla. 1st DCA 1991)
- Johnson v. State, 737 So. 2d 555 (Fla. 1st DCA 1999)
- Showers v. State, 570 So. 2d 377 (Fla. 1st DCA 1990)
- Hornsby v. State, 680 So. 2d 598 (Fla. 2d DCA 1996)