S.W.P. v. State

Full title: S.W.P., A JUVENILE, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Feb 17, 1978

354 So. 2d 414 (Fla. Dist. Ct. App. 1978)

Opinion

No. 76-1596.

January 17, 1978. Rehearing Denied February 17, 1978.

Appeal from the Circuit Court for Dade County, Dixie Herlong Chastain, J.

Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, and Rory Stein, Legal Intern, for appellant.

Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., and Edwin D. Davis II, Legal Intern, for appellee.

Before HAVERFIELD, C.J., and PEARSON and NATHAN, JJ.

PER CURIAM.

Respondent juvenile appeals an adjudication of delinquency for unlawfully receiving stolen property.

A petition for delinquency was filed charging the respondent with unlawfully receiving, retaining, disposing of or aiding in the concealment of stolen property, a motorcycle. Section 812.031, Florida Statutes (1975). The petition was later amended to include the charge of larceny of the same motorcycle. Section 812.021, Florida Statutes (1975).

Upon the close of the State's case, respondent's counsel moved that the State be required to elect between the two charges. The judge reserved ruling and at the close of all the evidence required the State to make an election. The State elected to proceed on the unlawful receipt of stolen property charge. Respondent's counsel then moved for judgment of acquittal. The judge denied the motion and adjudicated the respondent delinquent. We reverse.

There does not appear of record competent substantial evidence to support the adjudication of delinquency for unlawful receipt of stolen goods. Rather, the testimony and the inferences to be drawn at best went toward proving the theft of the motorcycle. The established law is that one who steals property or is a principal to the theft cannot be convicted of receiving, retaining, disposing or aiding in the concealment of stolen property. See Ketelsen v. State, 211 So.2d 853 (Fla.3d DCA 1968); Thomas v. State, 216 So.2d 25 (Fla.3d DCA 1968); E.C. v. State, 280 So.2d 492 (Fla.3d DCA 1973); McWhirter v. State, 325 So.2d 463 (Fla.1st DCA 1976); C.M.I. and A.R. v. State, 335 So.2d 868 (Fla.3d DCA 1976).

Reversed.

PEARSON, Judge (dissenting).

Juvenile proceedings are not criminal in nature¹ and, therefore, the juvenile in the present case was delinquent if either charge was proved.² Where the evidence at the conclusion of the case establishes delinquency pursuant to the sufficiently clear wording in the petition of delinquency,³ the finding of delinquency ought not be reversed upon a holding that the wrong kind of delinquency was proved, unless some prejudice to the juvenile in the defense of the charge can be found in the record. I would, therefore, affirm.

1 See § 39.10(5), Fla. Stat. (1975); and Richardson v. State ex rel. Milton, 219 So.2d 77, 80 (Fla.3d DCA 1969). But see Fla.R.Juv.P. 8.180(a).

2 See Fla.R.Juv.P. 8.110(c)(1).

3 See In Interest of V.D., 245 So.2d 273 (Fla.4th DCA 1971).