Florida/Georgia Personal Injury & Workers Compensation

...Section 812.014, Florida Statutes, was amended by Chapter 87-376, Laws of Florida. A revised instruction to incorporate the changes in the law is provided in Exhibit 4. 11. The instructions on pages 150 and 151 cover dealing in stolen property. The effect of Section 812.028(3), Florida Statutes, is not provided for in the current instructions....

...812-012(3) real property, including things growing on, affixed to and found in land; tangible or intangible personal property, including rights, privileges, interests and claims; and services. F.S. 812.012(6) "Stolen property" means property that has been 812.028(3) the subject of any criminally wrongful taking or if the property has not been stolen, that it was offered for sale to (defendant) as stolen property....

...812.012(3) real property, including things growing on, affixed on, affixed to and found in land; tangible or intangible personal property, including rights, privileges, interests and claims; and services. F.S. 812.012(6) "Stolen property" means property that has been the 812.028(3) subject of any criminally wrongful taking or if the property has not been stolen, that it was offered for sale to (defendant) as stolen property....

...1979), wherein we explained that the essential element of the defense of entrapment is the absence of a predisposition of the defendant to commit the offense. The appropriate test for entrapment is a subjective test. In Dickinson, we upheld the constitutionality of section 812.028(4), Florida Statutes (1977), which provided: It shall not constitute a defense to a prosecution for any violation of the provisions of ss....

...lay (citations omitted). State v. Dickinson, 370 So.2d at 763. The thrust of the entrapment defense in Florida has been held to focus upon and should continue to focus upon the intent or predisposition to commit the crime. In Dickinson, we said that section 812.028(4) preserves the line between the predisposed criminal and the unwary innocent. Section 812.028(4) has not been amended since our decision in Dickinson....

...Hoppenstand, Coral Gables, for appellee. OVERTON, Justice. The appellee, Carl John Dickinson, was charged by information with dealing in stolen property in violation of Section 812.019, Florida Statutes (1977). Dickinson was discharged by the trial court, which found Sections 812.012 to 812.028, Florida Statutes (1977), facially invalid under the Constitutions of the United States and the State of Florida because they fail to provide adequate notice of the conduct prohibited....

...We have jurisdiction to review this direct appeal under Article V, Section 3(b)(1), Florida Constitution. We extend our reasoning in State v. Allen, 362 So.2d 10 (Fla. 1978); State v. Lewis, 364 So.2d 1223 (Fla., 1978); and State v. Belgrave, 364 So.2d 1225 (Fla., 1978), to this case and hold that Sections 812.012 to 812.028, Florida Statutes (1977), are constitutionally sound because reasonable *763 persons have adequate notice of the types of conduct proscribed by these statutes. The trial court also invalidated Section 812.028 on another basis, finding that it "gives the government an opportunity to create crime rather than prevent it" and eliminates the defense of entrapment. We disagree. Section 812.028(4), Florida Statutes (1977), provides it shall not constitute a defense to a prosecution that: (4) A law enforcement officer solicited a person predisposed to engage in conduct in violation of any provision of ss....

...We reject the inference raised by the trial court's holding that a high degree of law enforcement participation constitutes a defense to a criminal charge. That issue was squarely confronted in Russell and rejected; we agree with the United States Supreme Court's conclusion. In the instant case, Section 812.028(4), Florida Statutes (1977), preserves the line between the predisposed criminal and the unwary innocent and withstands this constitutional challenge. The order below, dismissing the information against Dickinson because Sections 812.012 to 812.028, Florida Statutes (1977) are unconstitutional, is reversed; this cause is remanded to the trial court for proceedings consistent with this opinion....

...NOTES [1] Prior to enacting chapter 87-243, Laws of Florida, the legislature had done little regarding entrapment. In 1977 the legislature codified the affirmative defense of entrapment for violations of the Florida Anti-Fencing Act, sections 812.012 through 812.037. § 812.028(4), Fla. Stat. (1977). This Court found that act, including its codification of entrapment, constitutional in State v. Dickinson, 370 So.2d 762 (Fla. 1979). Before the enactment of subsection 812.028(4), the legislature had also addressed entrapment by abolishing its use in bribery prosecutions....

...erty in violation of section 812.022, Florida Statutes (1991). Ludwig argues here, as he did below, that the officers could not have had probable cause to arrest him because the officers knew that, in fact, the guns were not stolen. But by virtue of section 812.028(1) and (3), Florida Statutes (1991), neither law enforcement's use of a stratagem or deception in making an arrest, nor the fact that property that was not stolen was offered for sale as stolen, constitutes a defense to the charge of dealing in stolen property....

...By contrast, however, endeavoring to traffic in stolen property does not appear to require this essential element, but is complete, as the Court states, upon proof of an overt act manifesting criminal intent directed toward committing the substantive crime of trafficking. This result seems particularly apt in view of Section 812.028(3), Florida Statutes (1979), which strikes down as a defense to such a prosecution a claim that "[p]roperty that was not stolen was offered for sale as stolen property." A defendant, then, cannot be heard to complain in prosecutions o...

...1979); see also Darr v. People, 568 P.2d at 33 n. 3. Florida, as previously noted, has never adopted the defense of legal impossibility by court decision, and, by statute, has rejected the defense in prosecutions, as here, for endeavoring to traffic in stolen property. § 812.028(3), Fla....

...1st DCA 1980). That case holds that in a prosecution under Section 812.019, Florida Statutes (1977), proof of the stolen character of the goods is not essential to proof of the offense of "endeavoring to traffic in stolen property" (378 So.2d at 119). See Section 812.028, Florida Statutes (1977), and State v....

...Accordingly, we find that there must be some property which forms the basis of either charge. The legislature has statutorily precluded certain defenses to a prosecution for dealing in stolen property, including where "[p]roperty that was not stolen was offered for sale as stolen property." § 812.028(3), Fla....

...ling in stolen property provides: 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, punishable as provided in ss. 775.082, 775.083, and 775.084. Section 812.028(3) provides that It shall not constitute a defense to a prosecution for any violation of the'provisions of ss....

...e shoals, the State analogizes this reverse sting operation to one in which law enforcement goes undercover to sell items to purchasers who are led to believe that the items are stolen. See § 812.019, Fla. Stat. (1995) (dealing in stolen property). Section 812.028, Florida Statutes (1995), precludes certain defenses to the crime of dealing in stolen property, such as the fact that the item in question is not really stolen....

...al question. . Under our facts, if Sunset Enterprises had not been the arm of law enforcement and had fraudulent intent to obtain money from Sun-Trust Bank, their fraudulent credit card factoring could have been prosecuted under subsection (3)(a). . Section 812.028 specifically provides: 812.028....

...thout consent, whether or not the other person also has an interest in the property. From this definition the trial court reasoned that the element of consent had been “resurrected” as a defense to the Anti-Fencing Act. The court then focused on section 812.028(3), Florida Statutes (1981), the provision for defenses, which provides that in a theft prosecution the accused cannot defend on the basis that the property that was offered for sale as stolen property had not actually been stolen....

...cer solicits a person predisposed to engage in conduct in violation of any provision of the Anti-Fencing Act, in order to gain evidence against him, provided that such solicitation would not induce an ordinary law-abiding citizen to violate the act. § 812.028(4), Fla. Stat. (1981). The legislature codified the particular situation we are faced with in the instant case in section 812.028. The section specifically provides: 812.028 Defenses precluded....

...which he personally believed was stolen. There is no dispute that the defendant knowingly purchased the property with this belief. The fact that the property offered for sale as stolen property was not stolen, is not a valid defense. § 812.-028(3). Section 812.028 has been drafted to provide law enforcement officers with a tool to break up theft rings....

...Appellant solicited the sale of property, the subject of the charge, with the belief that it was in fact stolen. Actually, the owner furnished the property to law enforcement officers in order for them to sell it to appellant. Appellant asserts for the first time on this appeal that section 812.028(3), Florida Statutes (1979), is unconstitutionally over-broad in violation of the first amendment of the United States Constitution and article I, sections 4 and 9, of the Florida Constitution. Section 812.028(3) precludes the defendant from raising as a defense to section 812.-019(1) the fact that the property was not stolen. Appellant cites as support State v. Tomas, 370 So.2d 1142 (Fla.1979). Our supreme court did not address the application of section 812.028(3) in its consideration of that case....