Thomas v. State, 84-1537
Decision Date | 03 June 1988 |
Docket Number | No. 84-1537,84-1537 |
Citation | 526 So.2d 183,13 Fla. L. Weekly 1378 |
Parties | 13 Fla. L. Weekly 1378 Kenneth J. THOMAS, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and N. Joseph Durant, Jr. and Henry Harnage, Asst. Public Defenders, for appellant.
Robert A. Butterworth, Atty. Gen. and Richard L. Polin, Asst. Atty. Gen. and
Claire Lardner, Certified Legal Intern, for appellee.
Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
Charged with armed robbery, Thomas was found guilty of attempted strong-arm robbery of a bicycle which he claimed, at the jury trial below, he thought belonged to him. Notwithstanding that there was ample, although disputed, evidence that the defendant believed in good faith that he owned the property, the trial judge did not instruct the jury that such a belief constituted a lawful defense to the offense charged. This omission requires reversal for a new trial. 1
It is well settled that a well-founded belief in one's right to the allegedly stolen property constitutes a complete defense to a charge of theft, Rodriguez v. State, 396 So.2d 798 (Fla. 3d DCA 1981), and cases cited, and because the demonstration of a theft is indispensable to a robbery conviction, Arnold v. State, 83 So.2d 105, 108 (Fla.1955), to a robbery case as well. State v. Steele, 150 Wash. 466, 273 P. 742 (1929); see Vaughn v. State, 460 So.2d 505, 505 (Fla. 3d DCA 1984) (); see also State v. Parker, 102 Wash.2d 161, 683 P.2d 189 (1984). Nor is there any question that the trial court is obliged to instruct the jury as to any defense which, as here, is supported by a reasonable view of the evidence. Edwards v. State, 428 So.2d 357 (Fla. 3d DCA 1983); Rodriguez, 396 So.2d at 799.
The state disputes none of these propositions. It argues only that the issue was not properly preserved below because, as is indeed apparent from the record, the defendant did not submit an adequate proposed jury instruction on the subject for consideration by the trial court. While this fact would ordinarily preclude the defendant from claiming error in failing to charge on a particular subject, see Smith v. State, 424 So.2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983); Rodriguez, 396 So.2d at 800, it is not determinative in this case. This is because the "good faith" defense "went to the very heart, indeed to the existence of the defense" below. Rodriguez, 396 So.2d at 800. The lack of an instruction on what was the very basis of the defendant's position constituted fundamental error, which by definition need not be properly asserted in the trial court. Motley v. State, 155 Fla. 545, 548, 20 So.2d 798, 800 (1945) ( ); Stinson v. State, 245 So.2d 688 (Fla. 1st DCA 1971) (same); Whitehead v. State, 245 So.2d 94, 99 (Fla. 2d DCA 1971) ( ); Bagley v. State, 119 So.2d 400 (Fla. 1st DCA 1960) ( ); cf. Rodriguez, 396 So.2d at 800. See generally Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981), and cases cited at 544-45, cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983).
Accordingly, the judgment under review is reversed. For the reason stated in note 1, the time for rehearing is reduced to three days.
1 This result does not particularly help Mr. Thomas since he was sentenced to four and one-half years imprisonment in June of 1984 and has undoubtedly been...
To continue reading
Request your trial-
Thomas v. State
...has not shown any Florida case directly on point. In support of the requested instruction, Thomas relies primarily on Thomas v. State, 526 So.2d 183 (Fla. 3d DCA 1988), rev. denied, 536 So.2d 245 (Fla.1988), and Rodriguez v. State, 396 So.2d 798 (Fla. 3d DCA 1981), arguing that both cases h......
-
Bartlett v. State
...under the honest but mistaken belief that Dumas had given her permission, she cannot be found guilty of theft."); Thomas v. State, 526 So.2d 183, 184 (Fla. 3d DCA 1988) ("It is well settled that a well-founded belief in one's right to the allegedly stolen property constitutes a complete def......
-
Kenon v. State, 1D02-3675.
...during the trial which deprives the defendant of his only defense, Dames v. State, 807 So.2d 756 (Fla. 2d DCA 2002); Thomas v. State, 526 So.2d 183 (Fla. 3d DCA 1988), superseded by statute on other grounds, Thomas v. State, 584 So.2d 1022 (Fla. 1st DCA In Dames, defense counsel advised the......
-
Howard v. State, 89-850
...the evidence is fundamental error, reviewable even in the absence of a specifically requested instruction or objection. Thomas v. State, 526 So.2d 183 (Fla. 3d DCA), review denied, 536 So.2d 245 (Fla.1988); Tobey v. State, 533 So.2d 1198 (Fla. 2d DCA 1988), review denied, 542 So.2d 990 (Fla......
-
Claims of right in theft and robbery prosecutions.
...right are available in theft prosecutions. The first reported Florida case to expressly address the question--Thomas v. State (Thomas I), 526 So. 2d 183 (Fla. 3d DCA 1988)--adopted this latter logic to conclude that specific claims of right are available in robbery cases. In the only other ......