Opinion
No. 77-599.
October 25, 1977.
Petition for review from the Circuit Court, Dade County, Alan R. Schwartz, J.
Martin J. Schwartz, Hollywood, Horton, Perse Ginsberg and Arnold R. Ginsberg, Miami, for petitioner.
Richard E. Gerstein, State Atty. and John P. Durant, Asst. State Atty., for respondent.
Before HENDRY, C.J., and NATHAN and KEHOE, JJ.
Petitioner-cross-respondent, defendant in the trial court and appellant in the circuit court, seeks issuance of a writ of certiorari directed to an order of the circuit court which, inter alia, affirmed her conviction for petit larceny (shoplifting).
Respondent-cross-petitioner, prosecution in the trial court and appellee in the circuit court, has cross-petitioned this court to quash a portion of that same order which reversed petitioner-cross-respondent's conviction for resisting arrest without violence.
Petitioner-cross-respondent was charged with the crimes of petit larceny, in violation of Section 812.021, Florida Statutes (1975); resisting arrest without violence, in violation of Section 843.02 Florida Statutes (1975); and reckless driving, in violation of Section 316.029, Florida Statutes (1975).
After pleading not guilty to all three charges, the case proceeded to non-jury trial in the county court. At the conclusion of the trial, petitioner-cross-respondent was found guilty on ali three charges, fined $250.00 on each charge and sentenced to 30 days each on the shoplifting and resisting arrest convictions, sentences to run consecutively. On appeal, the circuit court sitting in its appellate capacity affirmed both the reckless driving and shoplifting convictions. The resisting arrest without force conviction was reversed on the ground that no probable cause existed at the time to arrest petitioner-cross-respondent, thus making the arrest illegal.
The reckless driving conviction is not a part of this petition for certiorari and as such, will not be reviewed by this court.
Having carefully considered the record, briefs and arguments of counsel it is our opinion that the circuit court departed from the essential requirements of law in affirming petitioner-cross-respondent's conviction for petit larceny in that respondent-cross-petitioner failed to prove the requisite ownership or superior possession of the alleged stolen property in one other than petitioner-cross-respondent. Simkovitz v. State, 340 So.2d 959 (Fla.3d DCA 1976); Johnson v. State, 190 So.2d 601 (Fla.3d DCA 1966).
As for the cross-petition for certiorari directed to that portion of the order which reversed petitioner-cross-respondent's conviction for resisting arrest without violence, no departure from the essential requirements of law has been shown.
Accordingly, the petition for certiorari is hereby granted and the petit larceny conviction is quashed. Cross-petition for certiorari is denied.
Petition for certiorari granted; cross-petition denied.