Benitez v. State, 3D02-2461.

• Decision Date: 20 August 2003
• Docket Number: No. 3D02-2461.,3D02-2461.
• Parties: Oscar Sebastian BENITEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

852 So.2d 386

Oscar Sebastian BENITEZ, Appellant, v. The STATE of Florida, Appellee.

No. 3D02-2461.

District Court of Appeal of Florida, Third District.

August 20, 2003.

Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before COPE, FLETCHER and WELLS, JJ.

WELLS, Judge.

Oscar Benitez was convicted of one count of practicing architecture without a license and one count of grand theft. He appeals solely from his conviction for grand theft. We reverse.

Benitez' grand theft conviction arises from a contractual relationship between Benitez and Juan and Lourdes Piloto. Shortly after their marriage, the Pilotos contacted Benitez, one of Mr. Piloto's friends, about doing some renovations to their bedroom and bathroom and for construction of a pool, deck and fence. Benitez, a licensed contractor and architect whose architect's license, unbeknownst to the Pilotos, had lapsed, met with the Pilotos and prepared a proposal for the requested renovations and new construction. Benitez estimated the cost of the requested renovations and new construction as approximately $51,000.

The Pilotos advised Benitez that they intended to pay for the project by refinancing their home and that the most that they could obtain was approximately $37,000. Based on these representations, Benitez reworked the proposal to bring it within the Pilotos' $37,000 budget. On May 12, 1998, the parties executed an agreement pursuant to which Benitez was to perform the work described in his revised proposal for approximately $37,000.¹

In addition to the $37,000 proposed cost of the project, Benitez charged the Pilotos $3,000 to prepare the necessary blue-prints for the project, blueprints which he signed and sealed as a licensed architect. These plans ultimately were approved by the City of Hialeah which then issued the necessary permits.

In late July of 1998, the Pilotos insisted that demolition work begin even though building permits had not yet been issued. Benitez opened the rear wall of the Pilotos' home and began digging the pool. Thereafter little progress was made on the interior renovations; the pool initially failed inspection; and it soon became apparent that the project could not be completed within the $37,000 budget. Construction stopped.² By that time, Benitez had collected approximately $27,000 of the $37,000 contract price.³

The Pilotos filed a complaint with the City of Hialeah and brought a civil suit against Benitez which they subsequently dismissed. In June 1999, Benitez was charged with practicing architecture without a license in violation of section 481.223 of the Florida Statutes and with two counts of grand theft. Benitez was found guilty of practicing architecture without a license (which he does not contest here) and of one count of grand theft.⁴ He received five years probation with a special condition that he serve four months in county jail and was ordered to pay $15,000 in restitution.

Benitez appeals from his grand theft conviction arguing that the State failed to prove intent. We agree.

Grand theft requires proof of intent to deprive the owner of property of its use or benefit. See § 812.014(1), Fla. Stat. (2002)("[a] person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently" deprive the other person of the benefit from the property or appropriate the property to his or her own use); Adams v. State, 650 So.2d 1039 (Fla. 3d DCA 1995). "Intent, being a state of mind, is often not subject to direct proof and can only be inferred from circumstances." Jones v. State, 192 So.2d 285, 286 (Fla. 3d DCA 1966). At the same time, "in a circumstantial evidence case, the State's evidence must be not only consistent with guilt but inconsistent with any reasonable hypothesis of innocence." Jeffries v. State, 797 So.2d 573, 580 (Fla. 2001); see Benedith v. State, 717 So.2d 472 (Fla.1998); McArthur v. State, 351 So.2d 972, 976 (Fla.1977).

Here the defendant's reasonable hypothesis of innocence was that he never intended to deprive the Pilotos of their money but that he was a legitimate businessman who ran into numerous unforeseen problems with a construction project.

The State points to the defendant's lapsed architect's license as evidence of felonious intent and supports that argument by relying on this court's decisions in Iglesias v. State, 676 So.2d 75, 76 (Fla. 3d DCA 1996), and State v. Summerlot, 711 So.2d 589(Fla. 3d DCA 1998). This reliance is misplaced. In Iglesias, this court concluded that a finding of felonious intent essential to the crime of grand theft was supported by evidence that the defendant secured a contract to perform construction work by falsely informing the victims that he was a licensed and insured contractor when in fact he was not. In Summerlot, we reversed dismissal of a grand theft charge that was predicated on an allegation that the defendant had misrepresented the status of his contractor's license.

In the instant case, the theft alleged was not the result of the defendant's lapsed architect's license. Correctly, Benitez does not question his conviction for practicing architecture without a license. However, there were no problems with the plans that he executed. The plans were approved, and the...