from the Circuit Court for Pinellas County; Kathleen T.
L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant
Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and Michael Schaub,
Chief Assistant Attorney General, Tampa, for Appellee.
appeals an order withholding adjudication and placing him on
probation for one count of grand theft and three counts of
burglary of a conveyance. We agree with J.K. that the trial
court erred in denying his motion for judgment of dismissal
of all four charges. J.K. and his codefendant, J.A.H., were
originally accused of conspiracy to commit burglary, grand
theft, and five counts of burglary of a conveyance. J.K. and
J.A.H. were tried together, both were found guilty of one
count of grand theft and three counts of burglary, and both
were placed on probation. J.A.H. filed an appeal of the order
withholding adjudication in his case and in J.A.H. v.
State, 44 Fla.L.Weekly D 1633, __ So.3d __, 2019 WL
2607481 (Fla. 2d DCA June 26, 2019), this court held that the
trial court erred in denying the motion for judgment of
dismissal, and it reversed the order withholding adjudication
and remanded the case with instructions to dismiss the
delinquency petition. Because the evidence presented against
the two juveniles was virtually the same, as this court did
in J.A.H., we reverse the order withholding
adjudication and placing J.K. on probation and remand with
instructions to dismiss the delinquency petition.
evidence at the bench trial established that a Nissan Altima
was stolen from a womans home on February 12, 2017, and when
it was recovered on February 16, it had been damaged. The
evidence also showed that four vehicles were burglarized
sometime during the evening of February 15 or the early hours
of February 16. One victim testified that on February 16, she
received a call from a detective notifying her that her purse
had been found in a stolen car. She then went outside and
noticed that her truck had been broken into the previous
night and several things had been taken. Her belongings were
found inside the stolen Nissan Altima. The victims boyfriend
also testified that his car was broken into that night and
items were stolen.
third car was also burglarized on February 16, but the owner
could not determine if anything was taken from her car. Her
home has a security system that monitors the entire property
and the street in front of the house. The victims boyfriend
testified that the burglary of the car and the attempted
burglary of his truck were captured on video, and the video
was played at trial. He testified that the video appeared to
show five young men involved in the burglary, but the video
was not clear enough to determine the ethnicity of the
approximately 2:00 a.m. on February 16, a deputy patrolling
in Belleair Beach saw the stolen Nissan Altima. He followed
the vehicle with the assistance of a police helicopter, and
when the vehicle stopped, five individuals exited the vehicle
Five people were arrested in close proximity to the car,
including J.K. and J.A.H. Deputies were not able to identify
who was driving the vehicle or where the individuals were
seated inside of the vehicle.
told a deputy that he knew the vehicle was stolen and
"that they were just out joyriding, that they werent
doing anything else." J.A.H. stated that there were five
individuals in the car, but he did not provide their names.
Deputies did not have any information that involved J.K.,
only that he was caught in the area. The State presented no
fingerprint or other evidence connecting J.K. to the
burglarized vehicles or stolen items.
court reviews the denial of a motion for judgment of
dismissal de novo, and a trial court should grant a judgment
of dismissal "if the State fails to present sufficient
evidence to establish a prima facie case." T.A.K. v.
State, 258 So.3d 559, 561 (Fla. 2d DCA 2018). Here, as
to the grand theft offense, we agree with the panel in
J.A.H., 44 Fla.L.Weekly at D1633, __ So.3d at __-34, that
there was no evidence connecting J.K. to the theft of the
vehicle or establishing that J.K. had possession of the
vehicle. See A.D.P. v. State, 223 So.3d
428, 430 (Fla. 2d DCA 2017) ("Evidence that a person was
a passenger in a previously stolen vehicle is insufficient to
prove the theft of the vehicle."). As noted in
J.A.H., because the evidence established, at most,
that J.K. was a passenger in the vehicle, judgment of
dismissal was required. See Canady v.
State, 813 So.2d 161, 161 (Fla. 2d DCA 2002) ("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."). We also note that
J.A.H., unlike J.K., made statements to law enforcement that
connected him to the car. J.A.H. stated that he knew the
vehicle was stolen and "that they were just out
joyriding, that they werent doing anything else." There
was no evidence that J.K. knew the car was stolen.
agree with the panel in J.A.H. as to the burglary
offenses. There was no evidence that placed J.K. at the scene
of the burglaries, there was no evidence that J.K. had
possession of the stolen items, and there was no evidence
suggesting where J.K. had been sitting in the stolen vehicle
in reference to those items. See J.A.H., 44
Fla.L.Weekly at D1633-34, __ So.3d at __. In Rivers v.
State,124 So.3d 247, 252 (Fla. 2d DCA 2013), this court
reversed the appellants convictions for burglaries and grand
thefts related to stolen purses where, although Rivers was
driving a car in which the stolen purses were found, there
were three passengers and two of the passengers were sitting
in the back seat where the stolen purses were found. This
court noted that Rivers was not in exclusive possession of
the stolen purses, and there was no evidence that he was at
the scene of the burglaries when the purses were stolen.
Id. "The State presented no other evidence to
show that Rivers had conscious, ...