D.D. v. State
D.D. v. State
Opinion of the Court
*123Appellant's motion for rehearing or clarification is granted. The prior opinion dated May 16, 2018, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.
D.D. appeals from an order placing him on probation but withholding adjudication for the delinquent acts of third-degree grand theft and first-degree misdemeanor criminal mischief. Because the State failed to present sufficient evidence that the value of the stolen and damaged property met the statutory thresholds for the charged offenses, see §§ 812.014(2)(c)(1), 806.13(1)(b)(2), Fla. Stat. (2016), we reverse and remand for the delinquency court to enter an order finding that D.D. committed second-degree petit theft, see § 812.014(3)(a), and second-degree misdemeanor criminal mischief, see § 806.13(1)(b)(1), and to hold a new disposition hearing.
The evidence at the adjudicatory hearing established that while D.D. was at school, he stole another student's cell phone and threw it from a second-story balcony. The State called the victim to testify about the value of the phone. The victim testified that the phone was his "father's old phone" and that he thought it was an iPhone 6. Beyond that, he did not know anything important about the phone-such as the size of the display, the quantity of memory, the quality of the camera, or anything else bearing on the phone's value. Although he originally stated that the phone was in perfect condition when it was stolen, he later testified that the only way he was able to recognize the shattered phone after it was recovered was by the absence of a small piece that had broken off before the theft. The victim nonetheless testified, without objection from D.D., that the phone was worth $340 because he and his mother "checked online how much a used phone with ... no damage ... would be worth." The State offered no further evidence of the value of the phone. The trial court subsequently denied D.D.'s motion for judgment of dismissal, which had been based in part on an argument that the State had failed to offer legally sufficient evidence that the value of the phone met the statutory threshold for grand theft, and found him delinquent.
A motion for judgment of dismissal in a delinquency case is subject to the same standard of review as a motion for judgment of acquittal in criminal cases. C.E.L. v. State,
To establish third-degree grand theft, the State must prove that the value of the stolen property was at least $300 at the time of the theft. § 812.014(2)(c)(1) ; Pickett v. State,
In this case, the victim plainly lacked sufficient personal knowledge to establish the stolen phone's value beyond a reasonable doubt. The victim was only barely able to identify the phone, and he had no knowledge at all of any characteristics that would be relevant to its market value. Although there was testimony admitted about the internet research the victim and his mother did, nothing in the testimony established that the phone or phones they saw on the internet were the same kind of phone or in a similar condition to the phone the victim had. Absent that kind of testimony-or some other probative evidence bearing on value-there was simply no way for the delinquency court to say that the $300 threshold for grand theft was met. See, e.g., M.K. v. State,
D.D. also argues that the State's evidence of the phone's value was not sufficient to meet the $200 threshold for first-degree misdemeanor criminal mischief. See § 806.13(1)(b)(2). Having already established that the State's value evidence could only sustain a conviction for second-degree petit theft under section 812.014, it follows that the same evidence is insufficient to prove first-degree misdemeanor criminal mischief. However, because D.D. failed to raise this particular argument with respect to the criminal mischief count in his motion for judgment of dismissal, it is not preserved for appellate review. See Tillman v. State,
But that does not bring our analysis to an end. D.D. argues further that even if his sufficiency-of-the-evidence argument on the criminal mischief count is unpreserved, we should nonetheless reverse that finding of delinquency because his trial counsel was ineffective in failing to preserve that argument. Generally, "ineffective assistance of counsel may not be raised on direct appeal." Corzo v. State,
In this case, there is no conceivable tactical explanation for D.D.'s counsel's failure to raise the exact same sufficiency-of-the-evidence *125argument for the criminal mischief charge that he did for grand theft. And because the prejudice to D.D. is obvious in this instance-his criminal mischief charge would have been downgraded to a second-degree misdemeanor had counsel preserved the argument-it is clear from the face of our record that D.D.'s trial counsel was ineffective and that D.D. is entitled to relief. See Bagnara v. State,
In sum, because the State's evidence was not sufficient to show that the value of the stolen phone met the threshold necessary to prove the offense of grand theft, the delinquency court erred in denying the motion for judgment of dismissal, and we reverse. Additionally, because D.D.'s counsel was ineffective in failing to challenge the sufficiency of the State's evidence as to the phone's value within the context of the criminal mischief charge, we also reverse the finding that D.D. committed first-degree misdemeanor criminal mischief. On remand, the delinquency court shall enter an order finding that D.D. committed the delinquent acts of second-degree petit theft and second-degree misdemeanor criminal mischief and hold a new disposition hearing. See D.J.S. v. State,
Reversed and remanded with instructions.
CASANUEVA and CRENSHAW, JJ., Concur.
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