viction for robbery with a weapon due to fundamental error in the State's reliance on a toy gun as its proof of the defendant's use of a weapon); Rodriguez v. State, 964 So.2d 833 (Fla. 2d DCA 2007) (holding reversal was required “[b]ecause the State's proof did not establish the crimes for which [the defendant] was convicted”); see also De La Hoz v. State, 997 So.2d 1198, 1202 (Fla. 3d DCA 2008) (observing that the Second and Fourth Districts have interpreted F.B. as recognizing fundamental error when the evidence is “legally insufficient to prove the offense of which the defendant was convicted, but is legally sufficient to prove a lesser included offense”); but see A.P.R. v. State, 894 So.2d 282, 286 (Fla. 5th DCA 2005) (observing that the second F.B. exception applies when “no crime was committed at all” and not when “the evidence is merely insufficient to prove an element of the crime charged”).However, subsequent to these decisions, the supreme court applied F.B. more broadly in Young v. State, 141 So.3d 161 (Fla.2013). Young was convicted of burglary of a dwelling.
DO F.B. V. STATE, 852 So.2d 226 (Fla.2003), AND YOUNG V. STATE, 141 So.3d 161 (Fla.2013), REQUIRE PRESERVATION OF AN EVIDENTIARY DEFICIENCY WHERE THE STATE PROVED ONLY A LESSER INCLUDED OFFENSE AND THE SENTENCE REQUIRED FOR THE GREATER OFFENSE WOULD BE UNCONSTITUTIONAL AS APPLIED TO THE LESSER OFFENSE? Id. at 861.
See id. The Second District retreated from Bennett in Munoz v. State , 937 So. 2d 686, 688–89 (Fla. 2d DCA 2006), but the Florida Supreme Court later disapproved of Munoz in Young v. State , 141 So. 3d 161, 167 (Fla. 2013). So Bennett remains good law today.
In support of his claim that counsel misadvised him of the law, Rubino's motion alleged that at trial, in moving for judgment of acquittal, defense counsel argued that the State's evidence did not establish burglary of a dwelling because the building he entered was uninhabitable, citing this court's opinion in Munoz v. State, 937 So. 2d 686 (Fla. 2d DCA 2006). However, the trial court denied the motion and informed counsel that Munoz had been disapproved by the Florida Supreme Court in Young v. State, 141 So. 3d 161 (Fla. 2013), wherein the supreme court held that if a building was constructed for the purpose of being a dwelling, the building retained its status as a dwelling even if it was uninhabitable at the time of the break-in. See also Perkins v. State, 682 So. 2d 1083, 1085 (Fla. 1996) (holding that the term "dwelling" referred to "buildings or conveyances of any kind that are designed for human habitation" and that "an empty house in a neighborhood is extended the same protection as one presently occupied").
(citing F.B., 852 So. 2d at 230 ). Conversely, in Young v. State, 141 So. 3d 161, 164 (Fla. 2013), the defendant was charged with burglary of a dwelling and the trial court denied his unelaborated motion for judgment of acquittal. On appeal, Young argued that the State had failed to prove an essential element of the charge, namely that the building was, in fact, a dwelling, and asserted reversal was mandated because it was fundamental error for the trial court to deny his motion under these circumstances.
In Florida, a claim must be preserved for review in the trial court before it may be raised on appeal. S ee Young v. State, 141 So.3d 161, 165 (Fla. 2013) (“A defendant must preserve a claim of insufficiency of the evidence through a timely challenge in the trial court.... the motion or objection must be specific in order to preserve the claim for appellate review.”)
Moreover, even if counsel performed a constitutionally inadequate investigation, her conduct caused no prejudice to McCloud. The controlling question is "the purpose of the structure" not the structure's habitability or its current use. Young v. State, 141 So. 3d 161, 166-172 (Fla. 2013) (holding that a structure retains its dwelling status even if the structure is uninhabitable during renovation); Perkins v. State, 682 So. 2d 1083, 1085 (Fla. 1996) ("an empty house in a neighborhood is extended the same protection as one presently occupied"). The only facts that counsel failed to discover — a violation of the land development code and an absent electric meter — relate to the structure's habitability not to the structure's purpose.
However, such a general objection is insufficient to preserve a cause challenge or to preserve a strike of the entire venire panel. See Young v. State , 141 So. 3d 161, 165 (Fla. 2013) (asserting that a boilerplate objection is inadequate); see also Gore v. State , 964 So. 2d 1257, 1265 (Fla. 2007) (citing F.B. v. State , 852 So. 2d 226, 229 (Fla. 2003) ); State v. Pacchiana , 289 So. 3d 857, 862 (Fla. 2020), cert. denied , ––– U.S. ––––, 141 S. Ct. 173, 207 L.Ed.2d 1105 (2020). Therefore, Hilton is not entitled to relief because any claim raised by appellate counsel would have been meritless given that trial counsel's objections on this issue were untimely and too generalized to properly preserve the argument.
"[A] ‘technical and proforma’ motion which requests a judgment of acquittal without further argument is ‘totally inadequate to preserve a sufficiency of the evidence claim for appellate review." " Young v. State, 141 So. 3d 161, 165 (Fla. 2013) (quoting Brooks v. State, 762 So. 2d 879, 895 (Fla. 2000)). To preserve for appellate review Mr. Garcia’s challenges to the sufficiency of the evidence presented below, he was required, in moving for judgment of acquittal at trial, to identify the element(s) of the second-degree grand theft and first-degree murder charges "for which he contended the evidence was lacking."
Fundamental error occurs when the evidence is insufficient to show that a crime has been committed. See F.B. v. State, 852 So.2d 226, 230 (Fla. 2003) ("The second exception to the requirement that claims of insufficiency of the evidence must be preserved occurs when the evidence is insufficient to show that a crime was committed at all."); Young v. State, 141 So.3d 161, 165 (Fla. 2013) (same). Appellant argues that the deputies were not lawfully engaged in a legal duty when they brought him back to the emergency room for medical care because he had a right to decline medical care.