Opinion
No. 92-2310.
July 20, 1993.
Appeal from the Circuit Court, Monroe County, Ruth Becker, Acting J.
Joseph P. Averill, Gerald J. Tobin, Miami, and Franklin D. Greenman, Marathon, for appellants.
Robert A. Butterworth, Atty. Gen., and Marc E. Brandes, Asst. Atty. Gen., for appellee.
Before BARKDULL, JORGENSON and GODERICH, JJ.
Sergio Valdes was convicted of violating Marine Fisheries Rules specifically relating to crustaceans of the species Panulirus argus (Counts III and IV). The record is devoid of any evidence to show that the crustaceans were of the species Panulirus argus. Since the State failed to prove all of the elements of the offense, Sergio's convictions for Counts III and IV must be reversed.
The State argues that this point was not preserved for appellate review since this specific argument was not made at the trial court. Even if this point was not raised below, this court may consider this point under the doctrine of fundamental error. "[C]onviction in the absence of a prima facie showing of the crime charged is fundamental error that may be addressed by the appellate court even though not urged below." K.A.N. v. State, 582 So.2d 57, 59 (Fla. 1st DCA 1991); see Troedel v. State, 462 So.2d 392 (Fla. 1984); O'Connor v. State, 590 So.2d 1018 (Fla. 5th DCA 1991); Johnson v. State, 569 So.2d 872 (Fla. 2d DCA 1990), review denied, 581 So.2d 167 (Fla. 1991); Dydek v. State, 400 So.2d 1255 (Fla. 2d DCA 1981).
As to Sergio's and Medardo Valdes' convictions for interference with a Marine Patrol Officer (Count I), we affirm since there was sufficient evidence in the record which showed that Lt. Martina was a law enforcement officer.
In light of our decision, we do not address the remaining issues raised on appeal.
Accordingly, we affirm Sergio's conviction for Count I, reverse his convictions for Counts III and IV, and remand for resentencing. As to Medardo, we affirm his conviction for Count I.