ANGELA ROSARIO-SANTOS v. STATE OF FLORIDA , 223 So. 3d 306 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANGELA ROSARIO-SANTOS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-3142
[July 12, 2017]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Cynthia L. Cox, Judge; L.T. Case No. 31-2015-CF-
000298B.
Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
Angela Rosario-Santos appeals her conviction and sentence for first
degree petit theft. Because the state failed to adequately prove the stolen
property was valued at $100 or more, we reverse and remand for the entry
of a judgment of guilt for second degree petit theft.
At trial, the Walmart security guard who apprehended appellant
testified that he observed appellant and another woman leave the store
with a shopping cart full of some paid-for items and some unpaid-for
items. The security guard did not testify to the value of the stolen items.
The police officer who responded to Walmart took several photos of the
items in the shopping cart, which were admitted into evidence. One photo
shows assorted meats, but no price tags. The officer did not testify to
value.
In response to appellant’s motion for judgment of acquittal based on
the state’s failure to establish value, the prosecutor asserted that some of
the prices in the meat photo “may add up to over $100,” but admitted she
did not get a chance to “really look that closely” at the photo. During
closing argument, the prosecutor conceded that the state did not “have an
exact value” of the unpaid-for items, but told the jury to use their common
sense.
“A conviction for first-degree petit theft requires competent substantial
evidence showing that the defendant stole property with a ‘value’ at the
time of the theft between $100 and $300.” Sanchez v. State, 101 So. 3d
1283, 1286 (Fla. 4th DCA 2012) (citing § 812.014(2)(e), Fla. Stat. (2010)).
“Where the state fails to prove that the stolen property is worth at least
$100, a conviction for first degree petit theft must be reduced to second
degree petit theft.” Ortiz v. State, 36 So. 3d 901, 902 (Fla. 4th DCA 2010).
Here, the state provided no evidence of the value of the stolen items. It
is theoretically possible that the fair market value of an item could be
determined to exceed $100 on common sense alone, for instance, if the
item was a classic Picasso painting. That fact pattern is not present in
this case. A photo of assorted meats, without more, is not competent
evidence of value to support a conviction of first degree petit theft.
We reverse the conviction and sentence for first degree petit theft and
remand for the entry of a judgment of conviction and sentence for second
degree petit theft.
Reversed and remanded.
GERBER, C.J., and KUNTZ, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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