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J.S.B. v. State

District Court of Appeal of Florida, Second District
Mar 17, 1999
729 So. 2d 456 (Fla. Dist. Ct. App. 1999)

Summary

concluding there was insufficient evidence of loitering and prowling where officer responded to report of burglary in progress and found empty vehicle in parking lot and juvenile with three men walking around dirt pasture behind the building

Summary of this case from C.H.S. v. State

Opinion

No. 97-04328

Opinion filed March 17, 1999.

Appeal from the Circuit Court for Manatee County; Scott Brownell, Judge.

James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Timothy A. Freeland, Tampa, for Appellee.


We reverse J.S.B.'s conviction for loitering and prowling. We determine that the evidence was insufficient to support a conviction.

At trial the State called only one witness, Deputy William Kelley of the Manatee County Sheriff's Office. Pursuant to a report that a burglary was in progress at a welding business, he arrived at the reported address at approximately 8:30 a.m. He testified that he observed an empty vehicle in the parking lot and proceeded to check the rear of the location. Behind the building he saw a ditch, a dirt road, a pasture that might have been fenced, and four young men about 20 feet from the building. The young men were walking and did not flee when they observed Deputy Kelley. Among the four was J.S.B. After receiving Miranda warnings, J.S.B. properly identified himself and indicated that they had pulled the car into the parking lot because it was overheating. He further advised the deputy that the boys were looking for water and a container to fill the radiator. Because he saw a water spigot and empty soda containers in the front of the building, the deputy doubted J.S.B.'s statement. The officer, who was the only witness, presented no evidence of burglary or an attempt. The State then rested and the defense moved for a judgment of acquittal, which was denied.

Miranda v. Arizona, 384 U.S. 436 (1966).

The State must prove two elements to sustain a conviction for loitering and prowling. First, the accused must be loitering and prowling in a manner not usual for law abiding citizens; and, second, the loitering and prowling must be under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property located in the vicinity. See State v. Ecker, 311 So.2d 104 (Fla. 1975). As to the first element the State must prove more than vaguely suspicious presence. As to the second, it must prove conduct that is alarming in nature, indicating an imminent breach of the peace or a threat to public safety. See Von Goff v. State, 687 So.2d 926 (Fla. 2d DCA 1997). Further, because the crime is a misdemeanor, the elements of the offense must occur in the officer's presence, see K.R.R. v. State, 629 So.2d 1068 (Fla. 2d DCA 1994), and the elements must be completed prior to any police action,see E.B. v. State, 537 So.2d 148 (Fla. 2d DCA 1989).

The facts presented by the State did not demonstrate that J.S.B.'s actions constituted an imminent breach of the peace or a threat to public safety. Therefore, the State failed to establish a prima facie case under section 856.021, Florida Statutes (1997), and the court erred in denying the juvenile's motion for judgment of acquittal.

Accordingly, we reverse the order finding J.S.B. guilty of loitering and prowling and remand with instructions that he be discharged.

PARKER, C.J., and WHATLEY and CASANUEVA, JJ., Concur.


Summaries of

J.S.B. v. State

District Court of Appeal of Florida, Second District
Mar 17, 1999
729 So. 2d 456 (Fla. Dist. Ct. App. 1999)

concluding there was insufficient evidence of loitering and prowling where officer responded to report of burglary in progress and found empty vehicle in parking lot and juvenile with three men walking around dirt pasture behind the building

Summary of this case from C.H.S. v. State

recognizing that to sustain a conviction for loitering and prowling, the state must prove two elements, which must have occurred in the officer's presence

Summary of this case from Madge v. State

stating elements of loitering or prowling must occur in the officer's presence

Summary of this case from T.P. v. State

In J.S.B. v. State, 729 So.2d 456 (Fla. 2d DCA 1999), this court reiterated the State must establish that the accused was: (1) loitering and prowling in a manner not usual for law abiding citizens (2) under circumstances warranting justifiable and reasonable alarm for the safety of persons or property in the vicinity.

Summary of this case from B.A.O. v. State

In J.S.B. v. State, 729 So.2d 456, 457 (Fla. 2d DCA 1999), this court held that to obtain a conviction for loitering and prowling the State must prove the following two elements: first, the accused must be loitering and prowling in a manner not usual for law-abiding citizens; and second, the factual circumstances must warrant a justifiable and reasonable concern for the safety of persons or property in the vicinity.

Summary of this case from R.M. v. State
Case details for

J.S.B. v. State

Case Details

Full title:J.S.B., Appellant, v. STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, Second District

Date published: Mar 17, 1999

Citations

729 So. 2d 456 (Fla. Dist. Ct. App. 1999)

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