final until disposition of timely filed motion for rehearing.
Consolidated appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; James L. Martz, Judge;
L.T. Case Nos. 502015CJ002140A, 15CJ002507AMB, 15C002611AMB,
15CJ002612AMB, 15CJ002613AMB, 15CJ002654AMB and
Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Joseph D.
Coronato, Jr., Assistant Attorney General, West Palm Beach,
appeals his adjudication of delinquency and commitment to a
non-secure residential program based on a violation of
probation. Appellant argues that the trial court erroneously
found that he violated probation in seven consolidated cases
by committing a new law violation: loitering or prowling. We
agree and reverse.
April 2016, appellant was charged by petition with loitering
or prowling under section 856.021, Florida Statutes (2016).
In the affidavit of violation of probation, the state alleged
that appellant: (1) committed a new law violation; (2) failed
to complete his community service; (3) failed to complete
substance abuse counseling; (4) violated his curfew; (5)
failed a drug test; and (6) failed to attend school full-time
without unexcused absences, skips, tardies, discipline
referrals, or suspensions. During the final probation
violation hearing, which was combined with the non-jury trial
on the loitering or prowling charge, the state abandoned all
other allegations of probation violation and proceeded only
on the loitering or prowling charge.
state's evidence established the following facts. On
April 25, 2016, shortly before noon, West Palm Beach police
responded to calls of a burglary in progress and several
juveniles fleeing the area at Lakes of Laguna, a residential
housing development. Multiple officers responded to the
scene. A witness pointed one officer toward a juvenile who
was running north. Another officer observed a group of
juveniles running away from the police and pursued two of
them. A canine officer and his police dog tracked six of the
juveniles, including appellant, to a wooded area along a
canal. One of the juveniles was attempting to cross the
canal. However, when the canine officer announced that he had
a police dog, who was barking at the time, the juveniles
stopped and raised their hands. Officers then escorted the
juveniles from the wooded area and took them into custody.
appellant was arrested, he was interviewed by a detective,
who read appellant his Miranda rights. Appellant
told the detective he did not know anything about a burglary
because he had left Palm Beach Lakes High School to go to
McDonald's with his friends. He admitted that he ran when
the police arrived at Lakes of Laguna, but explained that he
ran because he was on probation and believed he was
trespassing on the property. Although police recovered some
property from the burglary, appellant was not charged with
that offense. Instead, the state charged him with loitering
close of the state's case-in-chief, appellant moved for a
judgment of dismissal, arguing that the state had failed to
prove a prima facie case of loitering or prowling because his
alleged behavior at the canal was innocuous. The court denied
the motion. Appellant did not present a case but renewed his
motion for judgment of dismissal. The court dismissed the
substantive offense, finding that the description of
appellant's conduct at the time of the stop fell
"[woefully] short" of facts needed to support the
offense of loitering or prowling. However, the court found
that, based on appellant's conduct at the time of the
stop and his admission to trespassing, the evidence supported
finding a violation of probation by the lower preponderance
of the evidence standard in violation of probation cases. The
court also found that appellant's statements did not
allay the fears of the officer at the time because appellant
admitted to another crime. The court adjudicated appellant
delinquent in the violation of probation cases, based on the
loitering or prowling offense.
appeal, appellant argues that the evidence was insufficient
to establish that he committed the new crime of loitering or
prowling, even using the lower preponderance standard. He
contends that his belief that he had been trespassing was not
sufficient to constitute an "admission" to the
crime of trespass. The state argues that the evidence
supported the finding of a violation by establishing that
appellant: (1) fled from the area of the burglarized home as
the police arrived; (2) admitted to truancy and trespassing;
(3) admitted to accompanying juveniles involved in the
burglary; (4) failed to give the detective a good reason for
his presence at the burglarized home; (5) hid in a dense
wooded area inaccessible to the public; and (6) admitted he
knew that he was in violation of his probation by being near
the scene of the residential burglary.
review a trial court's decision on a motion for judgment
of dismissal de novo. A.W. v. State, 82 So.3d 1136,
1138 (Fla. 4th DCA 2012). A violation of probation based on a
new law violation requires proof by a preponderance of the
evidence that the defendant committed the charged offense.
Jones v. State, 117 So.3d 818, 821 (Fla. 4th DCA
2013). We review de novo whether competent substantial
evidence supports such a finding. Id.
prove the crime of loitering or prowling, the state must
establish: "(1) the defendant loitered or prowled
'in a place, at a time, or in a manner not usual for
law-abiding individuals,' and (2) the loitering was under
'circumstances that warrant a justifiable and reasonable
alarm or immediate concern for the safety of persons or
property in the vicinity.'" E.F. v. State,
110 So.3d 101, 104 (Fla. 4th DCA 2013) (quoting §
856.021, Fla. Stat. (2011)). Both elements must be committed
in the officer's presence prior to the defendant's
arrest. E.F., 110 So.3d at 104.
first element requires the state to prove that "the
defendant engaged in incipient criminal behavior which
law-abiding people do not usually engage in due to the time,
place, or manner of the conduct involved." E.C. v.
State, 724 So.2d 1243, 1244 (Fla. 4th DCA 1999)
(citation omitted). In other words, the defendant must be
engaged in "aberrant and suspicious criminal conduct
which comes close to, but falls short of, actual commission
or attempted commission of a substantive crime."
B.J. v. State, 951 So.2d 100, 103 (Fla. 4th DCA
2007) (quoting D.A. v. State,471 So.2d 147, 151
(Fla. 3d DCA 1985)). "A mere 'vaguely suspicious
presence is insufficient' to satisfy this element."
E.F., 110 So.3d at 104 (quoting P.R. v.
State, 97 So.3d 980, 983 (Fla. 4th DCA 2012)). Instead,
"[t]his element has been read to require a threat of
immediate, future criminal activity." V.E. v.
State, 539 So.2d 1170, 1171 (Fla. 3d DCA 1989). In this
respect, "the statute is forward-looking, rather than