FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Kathleen T.
Hessinger, Acting Circuit Judge.
Matthew McLaughlin, Clearwater, for Appellant.
Moody, Attorney General, Tallahassee, and David Campbell,
Assistant Attorney General, Tampa, for Appellee.
challenges the order withholding adjudication and placing him
on probation for one count of theft of a motor vehicle and
three counts of burglary. He contends that the court erred in
denying his motion for judgment of dismissal. We agree and
reverse and remand for dismissal of the petition for
was charged with one count of conspiracy to commit burglary
of a conveyance, one count of theft of a motor vehicle, and
five counts of burglary of a conveyance. J.A.H. and two
codefendants proceeded to an adjudicatory hearing. The
evidence at the hearing established that a vehicle was stolen
on February 12, 2017, and was not seen again until four days
later, February 16, 2017, around 2:00 a.m. Officers followed
the vehicle, and when the vehicle stopped near an apartment
complex, five individuals exited the vehicle and ran. All
five individuals were quickly apprehended, one of whom was
J.A.H. While in custody, J.A.H. admitted that he knew the
vehicle was stolen. But J.A.H. did not provide information
about the burglaries, vehicle theft, or where he had been
seated in the vehicle.
stolen vehicle officers found a wallet, purse, watch, and
sneakers, none of which belonged to the vehicle's owner.
At the adjudicatory hearing, the owners of those items
identified them and testified that the items had been in
their respective vehicles on the night of February 15, 2017.
The owner of the wallet testified that on the morning of
February 16 she received a call from detectives advising that
her wallet had been found. She and her boyfriend then
confirmed that their vehicles had been burglarized.
burglary victim testified regarding security video of his
residence. The video showed five individuals burglarizing the
victim's girlfriend's vehicle and attempting to break
into the victim's truck, both of which were parked
outside of the victim's residence. The victim testified
that he could not determine the ethnicity of the individuals
depicted in the video because he "did not have a clear
video." He also testified that he did not know any of
the defendants by name or face. When asked if he could
identify the defendants using the video, the victim
testified, "I believe from seeing them now I can almost
tell you which ones are which." However, when asked if
he would be able to identify the individuals in the video
using a photo pack, the victim responded "no."
individuals in the video were not identified by clothing or
other description. The State presented no fingerprint or
other evidence connecting J.A.H. to either the burglarized
vehicles or the stolen items.
the State rested, J.A.H. moved for judgment of dismissal of
the charges. The court dismissed two of the burglary charges
and the conspiracy charge. As to the charges at issue on
appeal, J.A.H. argued that the State had failed to present
sufficient evidence of the grand theft, based on Canady
v. State, 813 So.2d 161 (Fla. 2d DCA 2002), and had
failed to present sufficient evidence of the burglaries where
there was no evidence of J.A.H.'s control over recently
stolen property, relying on Garcia v. State, 899
So.2d 447 (Fla. 4th DCA 2005). The court denied the motion
for judgment of dismissal, found that J.A.H. had committed
the crimes, withheld adjudication, and placed J.A.H. on
probation for an indefinite period not to exceed his
review the denial of a motion for judgment of dismissal de
novo. M.D.S. v. State, 982 So.2d 1282, 1284 (Fla. 2d
DCA 2008). "In this circumstantial evidence case, the
State must not only prove the elements of the crime but also
must present evidence inconsistent with any reasonable
hypothesis of innocence." A.D.P. v. State, 223
So.3d 428, 430 (Fla. 2d DCA 2017) (citation omitted).
the motor vehicle theft charge, there was no evidence
connecting J.A.H. to the theft or establishing that J.A.H.
had possession of the vehicle. See id. at 430-31.
The law is clear that where the evidence established only
that J.A.H. was a passenger in the vehicle and knew the
vehicle was stolen, judgment of dismissal was required.
See id. at 431 ("When the State fails to show
that the accused exercised dominion and control over the
vehicle, such as when a person is merely a passenger, a motor
vehicle theft has not been established.");
M.D.S., 982 So.2d at 1284-85 (holding that the
failure to establish that the defendant exercised control
over the stolen vehicle required reversal); Canady,
813 So.2d at 161 ("An individual who is a passenger in a
vehicle after the vehicle has been stolen, even with
knowledge that it has been stolen, cannot be convicted of
grand theft." (citing Schlangen v. State, 735
So.2d 581, 581 (Fla. 2d DCA 1999))); A.J.R. v.
State, 726 So.2d 326, 327 (Fla. 2d DCA 1999)
("Concerning the grand theft charge, . . . the evidence
at best established that [A.J.R.] was a passenger in a
previously-stolen vehicle. This fact was insufficient to
prove a criminal intent to deprive or appropriate property,
as required under the theft statute."); cf. Rivers
v. State, 124 So.3d 247, 254 (Fla. 2d DCA 2013)
("The trooper's identification of Rivers as the
driver of the stolen [vehicle] established his possession of
it [for purposes of the grand theft of the vehicle].").
the burglaries, no evidence placed J.A.H. at the scene of the
burglaries or suggested that J.A.H. had possession of the
stolen items; likewise, no evidence indicated where J.A.H.
had been sitting in the stolen vehicle in reference to those
items.See Rivers, 124 So.3d at 252
("The State's evidence established that the purses
were stolen about a half hour before the trooper began
pursuing the [stolen vehicle] and that Rivers was in the
driver's seat when the chase ended. But no evidence
placed the [stolen vehicle] in the vicinity of the school
where the purses w[ere] stolen, and no evidence showed that
Rivers even knew the purses were in the car, much less that
he had dominion and control of them."). Further,
although the State repeatedly contended that the stolen
vehicle was used in the burglaries of the other vehicles, the
only evidence supporting that theory was the presence of some
of the items in the stolen vehicle hours later. The security
video showed the individuals on foot, not in a vehicle. The
presence of the stolen items in the vehicle is insufficient
evidence that J.A.H. burglarized the other vehicles. See
id. The State is not entitled to the inference of guilt
of theft and burglary based on the presence of the stolen
property because J.A.H. was not the sole occupant of the
vehicle and the State did not establish that J.A.H. exercised
control over the property. See M.D.S., 982 ...