
    Lawson L. LAMAR, Sheriff of Orange County, Florida, Appellant, v. Willard KEESEE, Appellee.
    No. 86-1394.
    District Court of Appeal of Florida, Fifth District.
    Sept. 10, 1987.
    William C. Yose, Gen. Counsel and J. Edwin Mills, Asst. Gen. Counsel, Sheriff of Orange County, Orlando, for appellant.
    Irby G. Pugh, Orlando, for appellee.
   ORFINGER, Judge..

This is an appeal from a final order granting the appellee’s motion, made at the close of appellant’s case, to dismiss the forfeiture proceedings brought by appellant, and denying the appellant’s application for the forfeiture of a 1981 Chevrolet pickup truck. We reverse.

Pursuant to the provisions of sections 932.701-704, Florida Statutes (1985), the sheriff sought forfeiture of the pickup truck as a contraband article on the ground that the truck had been used as an instrumentality in the commission of the felony crimes of grand theft (sec. 812.014) or dealing in stolen property (sec. 812.019). On this appeal, the sheriff relies solely on section 812.019.

Among other things, a “contraband article” is defined as “[a]ny personal property, including, but not limited to, any ... vehicle of any kind ... which has been or is actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony.” § 932.-701(2)(e). There was evidence presented at the trial of the forfeiture proceedings tending to prove that on several occasions Willard Keesee, the owner of the truck, purchased television sets and video recorders from sheriffs deputies who posed as thieves and who represented to Keesee that the goods were stolen. The various items were in their original sealed cartons and were sold to Keesee at prices substantially below market.

In the last transaction, which was videotaped, Keesee is shown telling a deputy to back the deputy’s vehicle up to the subject pickup truck. Keesee directed the deputy to unload the televisions and VCR’s into the truck and then covered the merchandise with a tarp. The deputy assured Kee-see that the identification numbers had not been recorded and thus that there would be “no problems.”

The merchandise sold to Keesee was not stolen, but was borrowed by the deputies from an electronics store. The sting operation was conducted after the sheriff’s office had received information leading them to believe that Keesee was dealing in stolen property. In granting Keesee’s motion for an involuntary dismissal at the close of the sheriff’s case, the trial court found that the sheriff had made a prima facie case that Keesee believed the merchandise to be stolen, but denied the forfeiture because the Sheriff of Orange County is unable to prove the property that Willard Keesee purchased from the petitioner on March 17, 1985 was stolen and will not [sic] sustain a charge of trafficking in stolen property.”

Section 812.019(1), Florida Statutes (1985) regarding dealing 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. 812.012-812.037 that: ... Property that was not stolen was offered for sale as stolen property.

Here, all parties agree that the subject property was not stolen. Although the court found that the Sheriff had made out a prima facie case, he based the involuntary dismissal solely upon the fact that the property was not stolen, reasoning that Keesee couldn’t “know or should know” the property was stolen.

In State v. Williams, 442 So.2d 240 (Fla. 5th DCA 1983) this court stated that it was in agreement with State v. Rios, 409 So.2d 241 (Fla. 3d DCA), rev. denied, 419 So.2d 1199 (1982) which held that the crime of endeavoring to traffic in stolen property does not require that the property be stolen, but is complete upon proof that the defendant committed “an overt act manifesting criminal intent directed toward committing the substantive crime of trafficking.” This court stated that there was “no reason to require the proof that the property was stolen in a solicitation to traffic case as opposed to an endeavoring to traffic case.” 442 So.2d at 242. See also State v. Skinner, 397 So.2d 389 (Fla. 1st DCA 1981) and Padgett v. State, 378 So.2d 118 (Fla. 1st DCA 1980) (both cases holding that a person could be convicted of endeavoring to traffic in stolen goods even though it was established that the goods were not stolen).

The case of In re Forfeiture of 1974 Ford Pickup Truck, 462 So.2d 1127 (Fla. 4th DCA 1984), relied on by appellee is distinguishable, because there, the forfeiture was based on an allegation that the truck had been used to haul stolen appliances, and the state had failed to prove that the appliances were stolen, or if they were, their value, so there was no evidence that the truck had been used to facilitate the commission of a felony.

In the case before us, the sheriff made a prima facie case that Keesee had committed the felony of endeavoring to traffic in stolen property, because he purchased the merchandise believing it was stolen, and used the pickup truck to store and conceal that merchandise. Thus, the order of involuntary dismissal was erroneously entered, and is reversed, and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

DAUKSCH, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting.

If a criminal statute merely prohibited trafficking (dealing) in stolen property, then one essential element of that crime would be that the property in question had to have been stolen. However, attempted crimes under statutes such as section 777.-04(1), Florida Statutes, apply to make crimes out of conduct which does not establish every element of some completed crime and such a statute might be construed to cover one who deals with property believing it to be stolen, although in fact it is not stolen.

However, section 812.019(1), Florida Statutes (1985), the Florida criminal statute prohibiting one from trafficking in stolen property, anticipates and answers the “attempt” problem by not only prohibiting one from trafficking in stolen property, but also criminalizing the conduct of one who “endeavors” to traffic in stolen property, which means one who attempts to traffic in stolen property. It is on this basis that some district courts of appeal have held that one can be convicted of endeavoring (attempting) to deal in stolen property although the property in question is, in fact, not stolen. While this position can be defended by sophisticated legal reasoning the average layman is probably hard pressed to understand how one can be convicted of dealing in stolen property if the property is not stolen and why, if the person does not commit a completed crime because the property was not stolen, he can be convicted of trying (“attempting” or “endeavoring”) to do something that is legally and physically impossible for him to do. However that may be, it is going too far to extend such reasoning to uphold forfeiture of appellee’s pickup truck in this case. First, the forfeiture statute (§ 932.-701(2)(e), Fla.Stat. (1985)) defines as contraband a vehicle “actually employed as an instrumentality in the commission of ... any felony.” Unlike the trafficking statute itself, the forfeiture statute does not cover attempts or endeavors to use a vehicle to attempt or endeavor to commit a felony. Secondly, assuming that appellee violated the trafficking statute when he agreed to, or did, buy the sheriffs non-stolen property, that crime was completed before the sheriffs deputies put the non-stolen property on appellee’s pickup truck, so that appellee’s pickup truck was not “actually employed” as an instrumentality in the commission of the attempted trafficking offense. Thirdly, because the crime of attempting to traffic in non-stolen property does not require that the defendant actually take possession of the non-stolen property, under the undisputed facts in this case the pickup truck was not, in fact, used or employed to commit the attempted trafficking offense. Fourth, any use of the truck “to store and conceal” the non-stolen property was made by the sheriff’s deputies who loaded the non-stolen property onto the appellee’s pickup truck before arresting appellee and retaking possession of the non-stolen property. Appellee should not have his pickup truck forfeited because of the action of the sheriff’s deputies. The pickup truck was never used by appellee to transport or otherwise deal in or with the non-stolen property.

Law enforcement and courts are extending the forfeiture statute too far. If an ordinary citizen lied to another man and induced him to break the law and deal with certain property and then also placed that property on the man’s pickup truck in order to take the man’s truck away from him, any judge or jury would quickly find fraud, deceit, trickery, overreaching, etc., and thwart such endeavor. We should remember the warning that “our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. ... To declare that in the administration of the criminal law the end justifies the means ... would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.” 
      
      . Mr. Justice Brandeis, dissenting in Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928).
     