Lane v. State, 1D02-4057.
| Citation | 867 So.2d 539 |
| Decision Date | 27 February 2004 |
| Docket Number | No. 1D02-4057.,1D02-4057. |
| Parties | Frederick LANE, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Nancy A. Daniels, Public Defender; Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General; James W. Rogers, Senior Assistant Attorney General and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
Frederick Lane appeals his conviction for resisting a merchant's employee's efforts to recover stolen property in violation of section 812.015(6), Florida Statutes (2002), arguing that the trial court's failure to instruct the jury on two of the elements of the crime constituted fundamental error. We affirm.
Mr. Lane was tried on an information that charged not only resisting a merchant's employee's efforts to recover stolen property, but also felony petit theft of the same property in violation of section 812.014(3)(c), Florida Statutes (2002), and was convicted on both charges.
The trial court gave the standard jury instruction regarding felony petit theft and, regarding resisting a merchant's employee's efforts to recover stolen property, instructed the jury:
Now as to Count II, before you can find the defendant guilty of resisting retail merchant without violence the State must prove the following three elements beyond a reasonable doubt, first that Frederick Lane ... resisted the reasonable efforts of Kevin Riddle to recover merchandise, second, at the time Kevin Riddle had probable cause to believe that Frederick Lane ... had concealed or removed merchandise from its place of display, and third, at the time Kevin Riddle was merchant employee.
While appellant now contends that this instruction omitted two elements of the statutory offense, at no time did trial counsel state any objection to any aspect of the jury instructions, or offer any alternative.
On appeal for the first time, appellant complains specifically that the jury was not required to find either that he had offered resistance while he was committing (or after he had already committed) a theft of the merchandise he had removed or concealed; or that he knew or had reason to know that Mr. Riddle was a Walgreens employee. In pertinent part, the statute proscribing resisting a merchant's employee's efforts to recover stolen property provides:
An individual who, while committing or after committing theft of property, ... resists the reasonable effort of a ... merchant's employee ... to recover the property ... which the ... merchant's employee ... had probable cause to believe the individual had concealed or removed from its place of display or elsewhere... commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, unless the individual did not know, or did not have reason to know, that the person seeking to recover the property was a ... merchant's employee.... For purposes of this section the charge of theft and the charge of resisting may be tried concurrently.
Section 812.015(6), Florida Statutes (2002). To convict under this statute, the state must indeed prove that the defendant resisted "while committing or after committing theft of property"; and that the person whose efforts to secure the property's recovery the defendant resisted was someone the defendant knew or had reason to know was (a merchant or) a merchant's employee.
But jury State v. Delva, 575 So.2d 643, 644 (Fla.1991). Whether an omission or other error in jury instructions is fundamental depends, under the cases, on...
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