final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 16-2646A Orlando A. Prescott, Judge.
J. Martinez, Public Defender, and Jeffrey Paul DeSousa,
Assistant Public Defender, for appellant.
Jo Bondi, Attorney General, and Sandra Lipman, Assistant
Attorney General, for appellee.
SALTER, EMAS and FERNANDEZ, JJ.
appeals the trial court's order finding him delinquent of
burglary and criminal mischief,  withholding adjudication,
and placing him on probation under the supervision of the
Department of Juvenile Justice.
reverse that portion of the order which determined I.L.
committed a burglary, as the evidence presented at the
adjudicatory hearing was insufficient to establish one of the
elements of this offense. Count One of the petition alleged
that I.L. committed burglary of a structure in violation of
section 810.02(4)(a), Florida Statutes (2016). For purposes of
Chapter 810 ("Burglary and Trespass"), the term
"structure" is defined in relevant part as follows:
"Structure" means a building of any kind, either
temporary or permanent, which has a roof over it, together
with the curtilage thereof.
evidence presented at the adjudicatory hearing established
that the building at issue was under construction and had no
roof. Under these circumstances, the trial court erred in
denying I.L.'s motion for judgment of dismissal. Based
upon the allegations of the petition, the only necessarily
lesser-included offense that the trial court could have
considered (trespass of a structure, see section
810.08) would also have required proof that the
"structure" had a roof over it. We therefore
reverse the order finding I.L. delinquent for the offense of
burglary and remand with instructions to enter a judgment of
dismissal on that charge.
affirm the trial court's order finding I.L. delinquent
for the offense of criminal mischief resulting in damage of
$200 or less, as there was competent substantial evidence to
support the trial court's determination. See J.Y. v.
State, 332 So.2d 643, 644 (Fla. 3d DCA 1976) (holding:
"In examining a record to determine if there is
sufficient evidence to support the conclusion of the trier of
fact, an appellate court need only find substantial,
competent evidence to support the conclusion.")
we are reversing one of the two offenses for which I.L. was
found delinquent, we also reverse the order placing I.L. on
probation, and remand for the trial court to conduct a new
disposition hearing. See Stanford v. State, 833
So.2d 174 (Fla. 3d DCA 2002).
in part, reversed in part, and remanded for entry of judgment
of dismissal of Count One of the petition ...