FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Keith P. Spoto,
L. Dimmig, II, Public Defender, and Julius J. Aulisio,
Assistant Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and Donna S. Koch,
Assistant Attorney General, Tampa, for Appellee.
Anthony White appeals from his judgment and sentences for
burglary of a dwelling and criminal mischief. He argues that
the evidence was insufficient to support his convictions and
that his defense counsel was ineffective for failing to
adequately raise this issue below. We agree and reverse.
was charged with burglary of a dwelling, grand theft,
criminal mischief, possession of methamphetamine, and
possession of drug paraphernalia after he was discovered
inside a trailer owned by Hammock Lake Estates mobile home
park. The trailer was vacant at the time of the incident but
White had showered there on previous occasions with the
consent of the then current renter. On approximately July 9,
2017, the park property manager went inside the trailer and
noticed that a television was missing; he did not notice any
other damage. A couple of days later, White was seen sitting
inside of the trailer's screened porch by a member of the
mobile home park's cleaning staff. The property manager
was notified and called police. Thereafter, the property
manager inspected the trailer and discovered that the blinds
and the shower had been damaged.
conclusion of the State's evidence, White's counsel
unsuccessfully argued for a judgment of acquittal on the
grand theft charge. However, defense counsel made no
arguments regarding the sufficiency of the evidence to
support the criminal mischief and burglary charges. In fact,
defense counsel argued that the evidence was "probably
enough to get to the trier of fact . . . on everything except
the TV theft." Defense counsel renewed the motion for
judgment of acquittal but, once again, made no argument
concerning the sufficiency of the State's evidence for
the criminal mischief and burglary charges.
general rule is that a claim of ineffective assistance of
counsel may not be raised on direct appeal." Corzo
v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002).
However, "[o]n rare occasions, the appellate courts make
an exception to this rule when the ineffectiveness is obvious
on the face of the appellate record, the prejudice caused by
the conduct is indisputable, and a tactical explanation for
the conduct is inconceivable." Id. "[T]he
failure to move for a judgment of acquittal when there are
serious concerns pertaining to the sufficiency of the
evidence presented by the prosecution may constitute
ineffective assistance reviewable on direct appeal."
Monroe v. State, 191 So.3d 395, 403 (Fla. 2016).
apparent from the record that the failure of White's
counsel to move for a judgment of acquittal on the criminal
mischief and burglary charges constituted ineffective
assistance. See id. In order to establish criminal
mischief, the State is not only required to prove that the
defendant damaged the property of another, but that the
damage was done willfully and maliciously. See
§ 806.13(1)(a), Fla. Stat. (2017); see also Stinnett
v. State, 935 So.2d 632, 634 (Fla. 2d DCA 2006)
("To be guilty of [criminal mischief] the defendant must
specifically intend to damage or destroy the property of
another."). Here, the State presented no evidence that
White damaged the inside of the trailer. Furthermore, even if
White had caused the damage, there was no evidence that he
acted maliciously as required by the statute. Therefore, had
defense counsel made a proper motion, White would have been
entitled to a judgment of acquittal on this charge. See
order to prove burglary of a dwelling, there must be evidence
to support a finding that the defendant entered or remained
in a dwelling "with the intent to commit an offense
therein." § 810.02(1)(b)(1), Fla. Stat. (2017).
Again, the State presented no evidence, direct or
circumstantial, that White had an intent to commit a crime
when he entered the trailer. And while stealthy entry into a
structure can establish prima facie evidence of intent to
commit an offense therein, see § 810.07(1),
nothing in this record supports such a finding.
defendant acts stealthily when his actions are done in a
furtive or clandestine manner to avoid discovery. J.A.S.
v. State, 952 So.2d 638, 640 (Fla. 2d DCA 2007). The
State offered no evidence to show that White entered the
trailer in a stealthy manner. Although the property manager
testified that his maintenance employee told him that the
padlock securing the screened door to the trailer was locked
at 11:30 the night before White was discovered, the padlock
was found unlocked and undamaged on a shelf inside of the
trailer and there was no sign of damage to the hasp. While
there was damage to the screen and screened door, there was
no evidence that White caused the damage or when the damage
occurred. In fact, the property manager testified that the
damage could have existed well before this incident. Finally,
it does not appear that White was trying to conceal his
whereabouts-his bike was parked outside of the trailer and he
was sitting on the porch of the trailer at 11:30 in the
we reverse White's convictions for criminal mischief and
burglary of a dwelling and remand for ...