Opinion
No. 1D99-4489.
Opinion filed January 10, 2001.
An appeal from the Circuit Court for Leon County. J. Lewis Hall, Jr., Senior Judge.
James C. Banks, Esquire, Special Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Bryan Jordan, Assistant Attorney General and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
We affirm Guy Strattan, Jr.'s convictions for grand theft of a firearm and attempted first degree murder of a law enforcement officer but we reverse his conviction for "depriv[ing] a law enforcement officer . . . of . . . his . . . radio or . . . the means to . . . summon assistance." § 843.025, Fla. Stat. (1997). The motion for judgment of acquittal should have been granted as to this charge. Although the attempt to get the gun failed, the theft statute makes "endeavor[ing]" to steal punishable as theft. § 812.014(1), Fla. Stat. (1997). AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.
MINER and ALLEN, JJ., Concur.
BENTON, J., concurs with opinion.
Construing section 843.025, Florida Statutes (1997), as requiring a specific intent to deprive a law enforcement officer of a radio or other means of communication, I concur in the judgment of the court. See generally Thompson v. State, 695 So.2d 691, 692 (Fla. 1997); Bartlett v. State, 765 So.2d 799, 801 (Fla. 1st DCA 2000); V.M. v. State, 729 So.2d 428, 429 (Fla. 1st DCA 1999); Miller v. State, 636 So.2d 144, 150 (Fla. 1st DCA 1994); Mordica v. State, 618 So.2d 301, 303-04 (Fla. 1st DCA 1993); see also Chicone v. State, 684 So.2d 736, 743-44 (Fla. 1996); 1 Wayne R. LeFave Austin W. Scott, Jr., Substantive Criminal Law § 3.5(e) (1986) (as quoted in Frey v. State, 708 So.2d 918 (Fla. 1998)). Although the deputy sheriff's radio fell to the floor, there was no showing that Mr. Stratton ever sought or took possession of the radio, and the deputy sheriff made use of the radio as soon as the physical altercation ended. After hearing the evidence concerning the confrontation between Mr. Stratton and the deputy sheriff who sought to arrest him, the learned trial judge observed that he "didn't see anything that indicated that the defendant had any intention of depriving him of the [radio] equipment."