FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
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 D1633 (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
evidence at the bench trial established that a Nissan Altima
was stolen from a woman's 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 victim's
boyfriend also testified that his car was broken into that
night and items were stolen.
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 victim's 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
and ran. 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
weren't 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 D1633-34, 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 weren't doing anything
else." There was no evidence that J.K. knew the car was
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. In Rivers v. State, 124
So.3d 247, 252 (Fla. 2d DCA 2013), this court reversed the
appellant's 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,' 'substantial,'
'personal and exclusive' possession of the
purses." Id. Here, the presence of the stolen
items in the car was insufficient to establish that J.K.
burglarized the other vehicles. See J.A.H., 44
Fla.L.Weekly at D1633-34.
we reverse the order withholding adjudication and placing
J.K. on probation and remand with instructions ...