FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Barbara
L. Dimmig, II, Public Defender, and Robert D. Rosen,
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs
Cline, Assistant Attorney General, Tampa, for Appellee.
appeals her withhold of adjudication of delinquency for
burglary of a dwelling and criminal mischief. From the evidence
presented at her adjudicatory hearing, it appears that E.M.
and a group of teenaged girls drove around town in a stolen
Toyota Camry, used a garage door opener to gain entrance into
a vacant house, parked the vehicle inside the garage, and
remained in the house for some period of time. A neighbor
identified E.M. when she briefly appeared in the house's
backyard. Otherwise, there was no evidence presented as to
what, if anything, E.M. did or intended to do while inside
the house. Various items in the house were found to have been
damaged, and the front hood and roof of the Camry were
respect to the criminal mischief disposition, the State
points out that it had announced a nolle prosse of that count
towards the conclusion of the proceeding. Though it does not
concede error, the State makes no argument in this appeal for
affirmance of this count. We can discern no basis to affirm
and are, therefore, compelled to reverse the circuit
court's disposition on that count. See State v.
Braden, 375 So.2d 49, 50 (Fla. 2d DCA 1979) ("As a
general proposition, everything which occurs in a proceeding
subsequent to the filing of a nolle prosse by the [S]tate is
a nullity."); State v. Spence, 658 So.2d 660,
661 (Fla. 3d DCA 1995) ("Upon the [S]tate's
announcement of a nol pros of the information, which was
self-executing, the case was effectively nullified and the
proceeding terminated." (citing Y.S. v. State,
620 So.2d 245, 246 (Fla. 3d DCA 1993))).
the burglary count, we agree with E.M. that the State failed
to present any evidence that E.M. held an intent to commit a
crime when she entered the house. See §
810.02(1)(b), Fla. Stat. (2017) (defining
"burglary" to mean "[e]ntering a dwelling . .
. with the intent to commit an offense therein");
P.D.T. v. State, 996 So.2d 919, 919 (Fla. 4th DCA
2008) (reversing adjudication of delinquency for burglary of
a dwelling and observing that the "intent to commit an
offense therein" under the statute "is an essential
element of the offense"). Indeed, there was no evidence
of what E.M. actually did-much less what she intended to
do-while she was inside the house. Cf. R.C. v.
State, 793 So.2d 1078, 1078-79 (Fla. 2d DCA 2001)
(reversing adjudication of delinquency on charge of burglary
where no evidence was presented of juvenile's intent when
he visited a friend who had broken into a vacant mobile home
and the juvenile's only criminal act while inside was to
write on a wall with a marker he had found in the home).
reverse the circuit court's withhold of adjudication of
delinquency as to count four (criminal mischief) with
directions to dismiss that charge and as to count one
(burglary of a dwelling) with directions to reduce that
charge to trespassing. See, e.g., J.J.D. v. State,
973 So.2d 1254, 1255 (Fla. 2d DCA 2008) (reversing and
remanding for "a reduction of the [burglary] charge to
trespass and for a new disposition hearing"). The
circuit court shall convene a new disposition hearing
consistent with this opinion.
NORTHCUTT, J, and CASE, JAMES R, ASSOCIATE SENIOR JUDGE,
E.M. was charged with third-degree
felony criminal mischief, but the circuit court found E.M.
committed the act of first-degree misdemeanor criminal
mischief. The circuit court also found sufficient evidence to
support the charge of trespass of a conveyance, ...