Florida Court Reverses Grand Theft and Loitering Prowling Conviction

Florida Loitering and Prowling Law

If you were arrested for loitering or prowling in Jacksonville, you likely want to know more about the law that applies to this crime. Florida Statute Section 856.021 prohibits loitering or prowling. This law states:

(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself or herself, or manifestly endeavors to conceal himself or herself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself or herself and explain his or her presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.
(3) Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

If you are facing a criminal charge for loitering or prowling in Jacksonville, it is the Duval County State Attorney’s burden to prove the case pursuant to the law set forth above. Be sure to discuss the facts of your case with your Jacksonville criminal lawyer to learn the defenses that are available to you. For instance, a man was convicted of loitering or prowling in Hillsborough County FL. The Florida appellate court found that the state failed to prove that the defendant committed loitering or prowling. The court also found the state’s evidence insufficient to prove grand theft, so I will review the Florida grand theft law in this article as well.

Florida Appellate Case Law

In Ellis v. State, the defendant, Tressie Demonte Ellis, appealed his convictions and sentence to the Florida Second District Court of Appeals. He was convicted and sentenced for burglary of an unoccupied dwelling, grand theft from a dwelling, and loitering or prowling. The appellate court confirmed his burglary conviction and reversed the grand theft and loitering or prowling convictions. This case is interesting due to the analysis of Florida’s loitering or prowling law. The court explained the elements that the state attorney must prove for a person to be convicted of loitering or prowling in Florida. The State must prove:

“(1) the defendant loitered and prowled ‘in a place, at a time, or in a manner not usual for law-abiding individuals, and (2) the loitering occurred under ‘circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.”

The court further stated:

“Both elements must occur in the officer’s presence and be complete before the officer takes action. Mills v. State, 58 So.3d 936, 939 (Fla. 2d DCA 2011). This court has recognized that a ‘threat of immediate, future criminal activity’ must exist. W.D., 132 So.3d at 874 (quoting P.R., 97 So.3d at 983). This court has further explained that ‘[t]he officer is determining whether he or she is viewing conduct that is reasonably causing the officer alarm or imminent concern that harm to person or property will likely occur in the very near future unless the officer intercedes.’ McClamma v. State, 138 So.3d 578, 586 (Fla. 2d DCA).” Ellis v. State, 157 So. 3d 467, 469 (Fla. 2d DCA 2015)

The appellate court found that the state failed to prove a case for loitering or prowling and reversed the conviction and sentence. Even though the police officer testified that “he believed Ellis was an imminent threat to the residents at the time of his arrest,” this was not enough. “Here, the circumstances reflect Ellis’s effort to leave the vicinity of the earlier burglary rather than an immediate concern that a crime was likely to occur in the very near future…. Nothing indicated that Ellis was about to burgle an apartment, break into a car, or otherwise threaten the safety of persons or property in the area. Rather, Ellis’s actions were those of a person who was trying to find his way out of the gated complex.” Ellis, 157 So.3d at 470.

Florida Grand Theft Conviction Overturned

This case also addressed Ellis’ grand theft conviction. The Florida appellate court reversed the conviction based on the state’s inability to prove the value of the property taken. For example, if you were arrested for grand theft in Jacksonville, it would be the Duval County State Attorney’s burden to prove the value of the property stolen is $300 or more. If we are talking about grand theft from a dwelling, the property must be valued at $100 or more. In Ellis’ case, the State was unable to show that he value of the bracelet and two phones taken were valued at $100 or more. The court explained:

“‘Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.’ § 812.012(10)(a)(1). ‘If the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount; if no such minimum value can be ascertained, the value is an amount less than $100.’ § 812.012(10)(b). Here, no evidence was presented that the value of the property could not be ascertained…. No evidence was presented regarding the value of one cell phone and the bracelet. The other cell phone had a cracked screen and had been purchased for $200 nine months previously. Nothing indicated that the value of the stolen items was impossible to ascertain.” Ellis, 157 So. 3d at 470.

 

 

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