Opinion
No. 4D00-2579.
March 13, 2002. Rehearing Denied April 22, 2002.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Dan Vaughn, J.
Michael L. Cohen, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
Spells was convicted and sentenced on seven counts of burglary of a dwelling, three counts of dealing in stolen property, two counts of theft, and one count of conspiracy to commit burglary. With respect to count II, burglary of a dwelling, we reverse. The convictions on all other counts are affirmed.
We recognize, as to count II, the burglary of a house on Nuevo Lagos Street, that there is evidence that a microwave oven matching the general description of a microwave oven stolen from the Nuevo Lagos house was recovered from the home of a witness who claimed to have purchased it from Spells and his co-perpetrator. However, the record on appeal reflects that the serial number of the microwave in evidence does not match that of the microwave taken in the Nuevo Lagos burglary. Other than the physical appearance of the microwave, and the fact that it was stored in a barn used by Spells to store other stolen goods, there is no proof that Spells participated in the Nuevo Lagos burglary. This evidence is insufficient to meet the circumstantial evidence standard of State v. Law, 559 So.2d 187, 188 (Fla. 1989), and, therefore, the trial court erred by denying Spells' motion for judgment of acquittal.
Accordingly, we reverse and remand for modification of the judgment and for re-sentencing as to the remaining counts.
POLEN, C.J. and STEVENSON, J., concur.