Opinion
Case No. 2D18-4975
10-16-2020
J.A.R., Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
CASANUEVA, Judge. J.A.R. appeals an order adjudicating him delinquent for committing the offenses of burglary of an unoccupied conveyance, grand theft of a motor vehicle, and resisting arrest without violence. He argues on appeal that the trial court erred in denying his motion for judgment of dismissal and erred in imposing a fee for the services of the public defender without giving him notice of his right to a hearing regarding the fee. We agree that the trial court erred in denying his motion for judgment of dismissal as to the burglary and grand theft offenses and that the trial court erred in imposing the public defender fee.
I. Judgment of Dismissal
An appellate court applies the de novo standard of review when examining the denial of a motion for judgment of dismissal. J.K. v. State, 285 So. 3d 372, 374 (Fla. 2d DCA 2019). In doing so, it must consider the evidence presented at trial in a light most favorable to the State. T.A.K. v. State, 258 So. 3d 559, 561 (Fla. 2d DCA 2018). The appellate court must then determine whether this evidence amounted to competent, substantial evidence to support a conviction. Bush v. State, 295 So. 3d 179, 200 (Fla. 2020) (first citing Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981) ; and then citing Spinkellink v. State, 313 So. 2d 666, 671 (Fla. 1975) ). "[I]f a rational trier of fact could find that the elements of the crime have been established beyond a reasonable doubt, sufficient evidence exists to sustain the conviction." E.A.B. v. State, 851 So. 2d 308, 310 (Fla. 2d DCA 2003).
J.A.R. argues that the trial court should have granted his motion for judgment of dismissal as to all charges because the State did not establish that the Jeep he was driving belonged to the victim. Considering the evidence in the light most favorable to the State, we agree that the evidence did not establish the offenses of burglary and grand theft. James White testified at trial that he owned a gray, four-door, 1999 Jeep Grand Cherokee, and he testified as to the Jeep's license tag number. On September 30, 2018, he parked the Jeep at his mother's house at around 9 p.m. Mr. White's mother called him the next morning, October 1, 2018, and said that the Jeep was missing. Mr. White called police around 8 a.m. to 9 a.m. to report that the Jeep was stolen. He testified that police called him at "about 12 in the morning" and said that they had pulled over his vehicle near his mother's house and that he could pick up the vehicle. He called his mother and she picked up the vehicle. The State did not ask Mr. White to identify the location where his mother picked up the vehicle, and he was not asked to identify the officer he spoke with that morning.
The second witness called by the State, Officer James Wolff, testified that during his patrol on October 1, he saw J.A.R. driving an older model silver-gray Jeep Grand Cherokee. He checked the vehicle's registration and the FCIC showed that the vehicle was stolen in September. Before law enforcement attempted to conduct a stop of the vehicle, J.A.R. stopped the vehicle in the middle of an intersection and ran from the area. Officer Wolff ran after him, and J.A.R. ignored the officer's command to stop. J.A.R. was ultimately apprehended. The State did not ask Officer Wolff to identify the Jeep's year or license plate number. The State also did not ask him if anyone had contacted the Jeep's owner or what had happened to the Jeep after it was stopped. This case is similar to V.G. v. State, 224 So. 3d 795, 796-97 (Fla. 2d DCA 2017), where the victim testified that his rental car, a 2016 silver Dodge Dart, was stolen when he stopped briefly at his aunt's house. The victim had never looked at the car's license plate number. Id. at 797. When he came out of the house, the car was gone, and he immediately reported the theft to the police department. The next evening, an officer observed the driver of a silver Dodge Dart commit several traffic infractions and then come to an abrupt stop. V.G. exited from the driver's door and fled. Id.
This court noted that the allegation as to the owner of the vehicle is a material element of the crime of burglary of a conveyance and "must be proven as alleged in the detention petition or information." Id. (quoting L.D.S. v. State, 784 So. 2d 1227, 1228 (Fla. 2d DCA 2001) ). "Similarly, '[t]o convict a person of grand theft auto, the State is required to present evidence that the vehicle in possession of that person was the vehicle identified by the victim as stolen.’ " Id. (alteration in original) (quoting Joseph v. State, 956 So. 2d 1232, 1234 (Fla. 4th DCA 2007) ).
In V.G., this court held that the motion for judgment of dismissal should have been granted as to the grand theft auto and burglary charges because there was insufficient evidence to establish that the vehicle from which the appellant fled was the victim's rental car. Id. at 798-99. The court noted that testimony concerning the car did not include the VIN or license plate but instead was a basic description of a common car, a 2016 silver Dodge Dart. Id. at 798. In V.G., as in the present case, the victim did not identify the car that was recovered by law enforcement. Id. This court held that "[w]here the State fails to prove that a conveyance that was recovered by police is the same conveyance that was burglarized or stolen, a conviction or adjudication for burglary or theft cannot stand." Id. at 797-98.
L.D.S. v. State, 784 So. 2d 1227 (Fla. 2d DCA 2001), is another similar case from Hillsborough County. In L.D.S., the victim testified that he parked his car, a four-door Saturn SL2, in Ybor City, and when he returned to the car, the rear passenger window was broken, a T-shirt was missing, and police were surrounding the car. Id. at 1227. The victim did not testify regarding the street on which his car was parked, and he did not provide his car's identification number, the car's license plate number, or a more detailed description of his car. Id. A police officer in L.D.S. testified that he saw a group of youths looking into vehicles parked along the street in Ybor City, saw one of them break the window of a green, four-door Saturn, and then saw a couple of the youths enter the car. Id. at 1227-28. This court held that the State did not prove the essential element of ownership of the vehicle, where it failed to establish that the burglarized green, four-door Saturn was the same vehicle that belonged to the victim. Id. at 1228 ; see also B.R.W. v. State, 226 So. 3d 366, 368 (Fla. 2d DCA 2017) (holding that State did not prove burglary of a conveyance where witness saw appellant rummaging through vehicle, but the "State failed to establish the make, model, color, license plate number, vehicle identification number, or any other distinguishing characteristic of either" that car or the victim's car).
In the present case, Officer Wolff testified that J.A.R. was driving an older model silver-gray Jeep Grand Cherokee. The prosecutor never asked him about the Jeep's license plate number, the vehicle identification number, the year of the vehicle, whether the victim's mother picked up the Jeep, or whether the victim or his mother ever identified the Jeep. As in V.G., the State failed to prove that the Jeep recovered by police was the same Jeep that belonged to Mr. White. Because the State failed to prove that the Jeep that was recovered by police was the same Jeep that was burglarized or stolen, the trial court erred in denying J.A.R.'s motion for judgment of dismissal as to the two felony offenses. We therefore reverse the order adjudicating J.A.R. delinquent for committing the offenses of burglary of an unoccupied conveyance and grand theft of a motor vehicle.
Nonetheless, we affirm the adjudication of delinquency for the offense of resisting an officer without violence. The evidence established that J.A.R. continued to flee after being instructed by the officer to stop. "[T]o support a conviction for obstruction without violence, the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant's action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty." C.E.L. v. State, 24 So. 3d 1181, 1185-86 (Fla. 2009) ; see also § 843.02, Fla. Stat. (2018). Here, Officer Wolff was engaged in the lawful execution of his legal duty when he asked J.A.R. to stop.
A police officer may conduct an investigatory stop if they have a well-founded suspicion that the person detained has committed, is committing, or is about to commit a crime. § 901.151(2), Fla. Stat. (2018). A law enforcement officer can stop a vehicle that has been reported stolen to investigate the possible theft of the vehicle. B.B. v. State, 315 So.3d 95 (Fla. 3d DCA July 15, 2020) ; Prestley v. State, 896 So. 2d 862, 864 (Fla. 5th DCA 2005). Here, although the State did not present testimony during the trial linking the victim's Jeep to the one that J.A.R. was driving, Officer Wolff testified that he checked the vehicle's registration and the FCIC showed that the vehicle was stolen. When J.A.R. stopped the Jeep in the middle of an intersection and ran from the area, he ignored Officer Wolff's lawful command to stop. Therefore, the evidence supported the offense of resisting arrest without violence, and we affirm the adjudication of delinquency as to this offense.
II. Public Defender Fee
J.A.R. argues that the trial court erred in imposing a $100 fee for the services of the public defender without notifying him of his right to a hearing to contest the fee. In Newton v. State, 262 So. 3d 849, 849-50 (Fla. 2d DCA 2018), this court held that the trial court erred in imposing a $100 fee for the services of court-appointed conflict counsel where the court failed to notify the appellant of his right to a hearing to contest the fee when pronouncing its imposition at sentencing. In Newton, 262 So. 3d at 850, this court certified conflict with the First District's decision in Mills v. State, 177 So. 3d 984, 987 (Fla. 1st DCA 2015), which held that the $100 fee is the minimum amount mandated by section 938.29(1)(a), Florida Statutes (2018), and therefore, it is "binding on the court and the defendant alike, [and] no hearing is necessary or appropriate." Cf. Alexis v. State, 211 So. 3d 81, 82 (Fla. 4th DCA 2017) (holding that "[b]ecause these fees are statutorily mandated, notice and a hearing are not required before imposition of the minimum amount," but such are required if the amount of the fee exceeds the statutory minimum).
In accordance with Newton, we reverse the $100 public defender fee and remand for it to be stricken because the record shows that the trial court did not give J.A.R. notice of his right to a hearing to contest this fee. As this court did in Newton, 262 So. 3d at 850, we certify conflict with the First District's decision in Mills, 177 So. 3d 984. We also certify conflict with Alexis, 211 So. 3d 81.
Affirmed in part; reversed in part; remanded; conflict certified.
VILLANTI and SLEET, JJ., Concur.