I.L. v. State ( 2018 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed February 21, 2018.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D17-1108
    Lower Tribunal No. 16-2646A
    ________________
    I.L., a juvenile,
    Appellant,
    vs.
    The State of Florida,
    Appellee.
    An Appeal from the Circuit Court for Miami-Dade County, Orlando A.
    Prescott, Judge.
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant
    Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney
    General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
    PER CURIAM.
    I.L. appeals the trial court’s order finding him delinquent of burglary and
    criminal mischief,1 withholding adjudication, and placing him on probation under
    the supervision of the Department of Juvenile Justice.
    We reverse that portion of the order which determined I.L. committed a
    burglary, as the evidence presented at the adjudicatory hearing was insufficient to
    establish one of the elements of this offense. Count One of the petition alleged that
    I.L. committed burglary of a structure in violation of section 810.02(4)(a), Florida
    Statutes (2016).2 For purposes of Chapter 810 (“Burglary and Trespass”), the term
    “structure” is defined in relevant part as follows:
    “Structure” means a building of any kind, either temporary or
    permanent, which has a roof over it, together with the curtilage
    thereof.
    1 I.L. was charged in Count Two with criminal mischief resulting in damage of
    $1000 or more, in violation of section 806.13(1)(b)3., Florida Statutes (2016), a
    third-degree felony. At the conclusion of the State’s case, the trial court granted a
    judgment of dismissal of that charge, reducing it to criminal mischief resulting in
    damage of $200 or less, in violation of section 806.13(1)(b)1., a second-degree
    misdemeanor.
    2   That statute provides in pertinent part:
    Burglary is a felony of the third degree, punishable as provided in s.
    775.082, s. 775.083, or s. 775.084, if, in the course of committing the
    offense, the offender does not make an assault or battery and is not
    and does not become armed with a dangerous weapon or explosive,
    and the offender enters or remains in a . . . [s]tructure, and there is not
    another person in the structure at the time the offender enters or
    remains . . . .
    2
    The evidence presented at the adjudicatory hearing established that the
    building at issue was under construction and had no roof.               Under these
    circumstances, the trial court erred in denying I.L.’s motion for judgment of
    dismissal. Based upon the allegations of the petition, the only necessarily lesser-
    included offense that the trial court could have considered (trespass of a structure,
    see section 810.08) would also have required proof that the “structure” had a roof
    over it.3 We therefore reverse the order finding I.L. delinquent for the offense of
    burglary and remand with instructions to enter a judgment of dismissal on that
    charge.
    We affirm the trial court’s order finding I.L. delinquent for the offense of
    criminal mischief resulting in damage of $200 or less, as there was competent
    substantial evidence to support the trial court’s determination.    See J.Y. v. State,
    
    332 So. 2d 643
    , 644 (Fla. 3d DCA 1976) (holding: “In examining a record to
    3 It is possible that the State could have charged I.L. with trespass on property
    other than a structure or conveyance, see § 810.09, Fla. Stat. (2016), but it is not a
    necessarily lesser-included offense of burglary of a structure as charged in the
    petition under section 810.02(4)(a). As the name implies, trespass on property
    other than a structure or conveyance does not require, as an element of the offense,
    proof of a “structure.” However (and unlike burglary), it does require, as an
    element of the offense, proof that notice against entering or remaining on the
    property was given to the offender either by actual communication to the offender,
    by posting notices, or by fencing. See § 810.011 (5)-(8), Fla. Stat. (2016). Given
    that this offense is not a necessarily lesser-included offense of burglary, it would
    have been improper for the trial court (or this court, upon reversal of the judgment
    for burglary) to direct entry of judgment for trespass on property other than a
    structure or conveyance. See State v. Sigler, 
    967 So. 2d 835
     (Fla. 2007); § 924.34,
    Fla. Stat. (2016).
    3
    determine if there is sufficient evidence to support the conclusion of the trier of
    fact, an appellate court need only find substantial, competent evidence to support
    the conclusion.”)
    Because we are reversing one of the two offenses for which I.L. was found
    delinquent, we also reverse the order placing I.L. on probation, and remand for the
    trial court to conduct a new disposition hearing. See Stanford v. State, 
    833 So. 2d 174
     (Fla. 3d DCA 2002).
    Affirmed in part, reversed in part, and remanded for entry of judgment of
    dismissal of Count One of the petition and for a new disposition hearing.
    4
    

Document Info

Docket Number: 17-1108

Filed Date: 2/21/2018

Precedential Status: Precedential

Modified Date: 2/21/2018