IN THE INTEREST OF K. M. S., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A juvenile was adjudicated delinquent for resisting a merchant under Florida Statute § 812.015(6), but the charging document failed to include the statutory requirement that the defendant be found guilty of the underlying theft. The appellate court vacated the adjudication, holding that a defectively charged count cannot support a conviction even when the defendant raises the defect in a motion to dismiss.
The motion to dismiss should have been granted because count II failed to charge a crime by omitting the material element requiring proof that the defendant was subsequently found guilty of theft. A defendant does not waive a defect in a charging document merely by attacking its sufficiency in a motion to dismiss, even if the defendant was aware of the defect.
[1] A charging document that fails to allege a material element of the crime charged is legally insufficient and fails to charge a crime.
[2] A motion to dismiss a charging document based on a missing element does not waive the defendant's right to appeal the denial of that motion.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 812.015(6), Florida Statutes (1979), under which appellant was charged, includes as a material element of resisting a merchant the requirement that the defendant is subsequently found to be guilty of theft of the subject merchandise. Count II failed to include this element. Without this element, count II failed to charge a crime and therefore the motion to dismiss should have been granted.”
Establishes the core holding that a deficiently pleaded charging document fails to state an offense and the motion to dismiss should be granted.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceK.M.S., a child, was charged with petit theft (count I) and resisting a merchant (count II) in a juvenile delinquency proceeding. Count II of the peti…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Resisting A Merchant cases and more on FLexlaw
FRANK D. UPCHURCH, Jr., Judge.
This appeal from an adjudication of delinquency for petit theft and resisting a merchant questions whether the order denying the motion to dismiss count II (resisting a merchant) of the juvenile petition was in error. Section 812.015(6), Florida Statutes (1979), under which appellant was charged, includes as a material element of resisting a merchant the requirement that the defendant is subsequently found to be guilty of theft of the subject merchandise.1 Count II failed to include this element. Without this element, count II failed to charge a crime and therefore the motion to dismiss should have been granted. State v. Dye, 346 So. 2d 538 (Fla.1977); Smith v. State, 75 Fla. 468, 78 So. 530 (1918).
The state contends that because appellant moved to dismiss based on the missing element, she therefore knew about it and could not be embarrassed in the preparation of her defense. This argument is frivolous. To so hold would mean that any time a person attacked the sufficiency of a charging document, even though the document was in fact defective, he could not appeal this point because knowing of the defect, he could not be embarrassed in his defense. The state’s reliance on Tracey v. State, 130 So. 2d 605 (Fla.1961) and Lucas v. State, 376 So. 2d 1149 (Fla.1979) is also misplaced. In Tracey, the defendant failed to assert the defect in the information in his motion to quash, failed to assign it as error and failed to argue the issue in his brief and thus was deemed to have waived the defect. Lucas did not involve a defective charging document but rather dealt with the use of contemporaneous convictions as an aggravating circumstance in sentencing.
The adjudication of delinquency based on count II of the juvenile petition is hereby vacated.
DAUKSCH, C. J., and SHARP, J., concur. . Section 812.015(6) provides as follows:
An individual who resists the reasonable effort of a peace officer, merchant, or merchant’s employee to recover merchandise which the peace officer, merchant, or merchant’s employee had probable cause to believe the individual had concealed or removed from its place of display or elsewhere and is subsequently found to be guilty of theft of the subject merchandise shall be guilty of a misdemeanor of the first degree, punishable as provided in s.775.082, s.775.-083, or s.775.084, unless the individual did not know, or have reason to know, that the person seeking to recover the merchandise was a peace officer, merchant, or merchant’s employee. (Emphasis added.)
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
K.C. v. State, 524 So. 2d 658 (Fla. 1988)…s of Appeal which have held that section 812.015(6) requires a finding of guilt on the underlying theft before the state can bring the charge of resisting a merchant. See In the Interest of J.L.P., 490 So. 2d 85 (Fla. 1st DCA 1986); K.M.S. v. State, 402 So. 2d 593 (Fla. 5th DCA 1981). Accord In the Interest of W.L.B., 502 So. 2d 50 (Fla. 1st DCA 1987). We find these holdings consistent with the plain language of section 812.015(6). As defined, the subsequent finding of guilt as to the underlying theft is a ma…
-
K.C. v. State, 507 So. 2d 769 (Fla. 3d DCA 1987)…tion based on theft of bicycle pump, but remanding for dismissal of charge of resisting a merchant, holding that the statute required a finding of guilt on the theft charge before a defendant could be charged with resisting arrest); K.M.S. v. State, 402 So. 2d 593 (Fla. 5th DCA 1981) (failure of count charging juvenile with resisting a merchant to include element that juvenile was subsequently found to be guilty of theft of the subject merchandise entitled juvenile to granting of motion to dismiss). Affirmed…
-
State v. R.J., 423 So. 2d 1014 (Fla. 4th DCA 1982)…premises “with the intent to commit an offense therein.” Id. at 512. DELL and WALDEN, JJ., concur. . A petition for an adjudication of delinquency must, like an information or indictment, allege the essential elements of a crime. K.M.S. v. State, 402 So. 2d 593 (Fla. 5th DCA 1981).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lucas v. State, 376 So. 2d 1149 (Fla. 1979)
- Smith v. State, 75 Fla. 468 (Fla. 1918)
- State v. DYE, 346 So. 2d 538 (Fla. 1977)
- Tracey v. State, 130 So. 2d 605 (Fla. 1961)