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W.J.M. v. State

Florida Court of Appeals, Second District

January 3, 2020

W.J.M., Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Hillsborough County; Barbara Twine Thomas, Judge.

          Melody M. Dietsch of Melody Dietsch Law, Brandon, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Chelsea N. Simms, Assistant Attorney General, Tampa, for Appellee.

          KELLY, Judge.

         W.J.M. appeals from the disposition order finding that he committed the delinquent acts of trespass of a conveyance, grand theft of a motor vehicle, third-degree grand theft, and resisting an officer without violence. Because of the State's failure of proof, we reverse the trial court's disposition as to grand theft of a motor vehicle and third-degree grand theft. We affirm the court's disposition of the remaining charges without discussion.

         Reynaldo Rosales Urquiza, a maintenance worker at the Oaks at Riverview apartment community, used a golf cart to travel around the complex. The golf cart had a compartment under the rear seat in which Mr. Rosales Urquiza stored his tools. On the date of the offenses, Mr. Rosales Urquiza drove the golf cart to one of the apartments and went in to repair a washing machine. When he returned to the cart to get his tools, the cart was gone. The manager of the apartment complex reported to law enforcement that the cart had been stolen. An officer responded to the manager's call and placed a BOLO alert for the stolen golf cart.

         Within a few hours of the golf cart's disappearance, Sydney Rose saw a juvenile opening the door of his neighbor's car. When he shouted at the juvenile, the juvenile and three others departed in a golf cart. He reported the suspicious activity to police. An officer responded to the "suspicious persons" call and investigated whether a golf cart had been reported stolen. He found that there was a BOLO alert for a recently stolen golf cart in the area. Shortly thereafter, four juveniles in a golf cart came riding down the middle of the street toward his unmarked police car. The officer could not identify which of the juveniles was driving the cart. When he activated his emergency lights and siren, the juveniles fled. Wearing a police vest, badge, police patch, radio and gun, the officer identified himself as a police officer, ordered the juveniles to stop, and chased them on foot. The juveniles ignored the officer's commands and continued to run. The officer called for reinforcements and within a few minutes the juveniles were apprehended. Mr. Rose identified W.J.M. and the other juveniles as the ones he had seen in his neighborhood riding around in the golf cart. W.J.M. was charged with the delinquent acts of burglary of a conveyance, grand theft of the golf cart, third-degree grand theft of Mr. Rosales Urquiza's tools, and resisting an officer without violence. W.J.M. moved for a judgment of dismissal of the charges, claiming that the State had not proven that he was anything other than a passenger in the golf cart. The trial court reduced the burglary charge to trespass of a conveyance and found that W.J.M. had committed the remaining delinquent acts as charged.

         Grand Theft of a Motor Vehicle

         The essential elements of grand theft of a motor vehicle require proof that an accused knowingly obtained or used a motor vehicle belonging to another with the intent to deprive the person of its use or to appropriate it to his own use. § 812.014(1), Fla. Stat. (2017). W.J.M. argues that evidence that a person was a passenger in a stolen vehicle is insufficient to prove that the person stole the vehicle, even if the passenger knew the vehicle was stolen. We agree. See A.D.P. v. State, 223 So.3d 428, 430 (Fla. 2d DCA 2017); Canady v. State, 813 So.2d 161, 161 (Fla. 2d DCA 2002).

         The State argues that W.J.M. could be found to have committed the theft along with the other juveniles under a principal theory. This argument fails because the State did not prove that W.J.M. "had a conscious intent that the criminal act be done" or that he encouraged, assisted, or advised the other juveniles in stealing the golf cart. See Alfonso-Roche v. State, 199 So.3d 941, 944 (Fla. 4th DCA 2016) (quoting Hall v. State, 100 So.3d 288, 289 (Fla. 4th DCA 2012)).

         Grand Theft of the Tools

         The State also failed to prove the third-degree grand theft of the tools. The evidence did not show W.J.M. knew there were tools stored under the seat of the golf cart or that he had the specific intent to deprive Mr. Rosales Urquiza of his property. See T.L.M. v. State, 755 So.2d 749, 751 (Fla. 4th DCA 2000) (noting that the intent to steal or deprive the victim of the victim's property is a necessary element of grand theft, and there must be substantial competent evidence from which the factfinder may reasonably infer the intent).

         Accordingly, we reverse the disposition order's findings that W.J.M. committed the delinquent acts of grand theft of the golf cart and grand theft of the tools, and remand with directions that W.J.M. be ...


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