FB v. State, No. SC02-1156.

• Court: United States State Supreme Court of Florida
• Writing for the Court: CANTERO, J.
• Citation: 852 So.2d 226
• Parties: F.B., a child, Petitioner, v. STATE of Florida, Respondent.
• Decision Date: 11 July 2003
• Docket Number: No. SC02-1156.

852 So.2d 226

F.B., a child, Petitioner,
v.
STATE of Florida, Respondent

No. SC02-1156.

Supreme Court of Florida.

July 11, 2003.

852 So.2d 227

Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner

Charles J. Crist, Jr., Attorney General, Celia Terenzio, Bureau Chief, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, Florida, for Respondent.

CANTERO, J.

We review F.B. v. State, 816 So.2d 699 (Fla. 4th DCA 2002), which certified conflict with T.E.J. v. State, 749 So.2d 557 (Fla. 2d DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As explained below, we approve the Fourth District Court of Appeal's holding that the insufficiency of the evidence to prove one element of a crime does not constitute fundamental error, and therefore this claim must first be raised in the trial court to be preserved for appellate review.

I. The Decisions in Conflict

The operative facts of the two cases are essentially the same. In F.B., the petitioner was adjudicated delinquent on the charge of petit theft of items valued at $100 or more but less than $300, a firstdegree misdemeanor. 816 So.2d at 700; see § 812.014(1)(a), (2)(e), Fla. Stat. (1999) (declaring the theft of items valued at $100 but less than $300 to be a first-degree misdemeanor). Although the State presented evidence about the items taken, it offered no evidence of their value. Petitioner failed to object, however, or to move for judgment of acquittal on this ground. Petitioner raised the claim for the first time on appeal, asserting fundamental error. The Fourth District held that under

852 So.2d 228

State v. Barber, 301 So.2d 7 (Fla.1974), the issue must be preserved for appeal. 816 So.2d at 701; accord Joseph v. State, 830 So.2d 911, 911 (Fla. 4th DCA 2002) (citing F.B. and affirming burglary of occupied dwelling conviction because insufficient evidence claim was not preserved). Similarly, in the conflict case, T.E.J. argued for the first time on appeal that a delinquency adjudication for first-degree petit theft must be reduced to second-degree because the State failed to prove the value of the stolen items. 749 So.2d at 558. Without mentioning Barber, the Second District Court of Appeal, relying on our decision in Negron v. State, 306 So.2d 104, 107 (Fla.1974), receded from on other grounds by Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), concluded that the "failure of proof on the essential element of value was fundamental error" and reversed. 749 So.2d at 558; accord E.R. v. State, 806 So.2d 529 (Fla. 2d DCA 2001) (reversing third-degree grand theft conviction as fundamental error, relying on T.E.J., because the State failed to prove that the value of the property exceeded $300 and ordering the conviction reduced to second-degree petit theft).¹

II. Barber and Negron

The courts in F.B. and T.E.J. relied on two different cases from this Court for their opposite holdings. In State v. Barber, 301 So.2d 7, 8 (Fla.1974), the respondents were convicted of two counts of breaking and entering with intent to commit grand larceny. As did the petitioner here, on appeal they alleged that the evidence was insufficient to sustain the conviction on the element of the value of the property stolen. The respondents contended that the State thus failed to present a prima facie case and that this constituted fundamental error. Citing a line of prior decisions, we rejected that argument and held that "unless the issue of sufficiency of the evidence to sustain a verdict in a criminal case is first presented to the trial court by way of an appropriate motion, the issue is not reviewable on direct appeal from an adverse judgment." Id. at 9. Because the issue was not preserved below, we held that it "was not open to appellate review." Id.

Three months after Barber, we decided Negron v. State, 306 So.2d 104 (Fla.1974), on which the Second District relied in T.E.J. After resolving the conflict issue presented, this Court turned to the petitioners' contention "that there was fundamental error committed as to them in that they were convicted of grand larceny when the State's evidence did not support a conviction of grand larceny." 306 So.2d at 107. Again, the petitioners claimed that the State failed to present sufficient evidence of the value of the items stolen. Without referring to Barber, we reviewed the record and held that the evidence was insufficient to support a grand theft conviction. Id. at 108. We reversed for entry of a petty larceny conviction. Id. at 109.

Although Negron tacitly rests on the assumption that the petitioners' insufficient evidence claim constituted fundamental error, the Court did not address that issue. Thus, while the Second District's reliance on Negron is understandable, we again remind the courts that

this Court does not intentionally overrule itself sub silentio. Where a court encounters an express holding from this Court on a specific issue and a subsequent contrary dicta statement on the same specific issue, the court is to apply

852 So.2d 229

our express holding in the former decision until such time as this Court recedes from the express holding.

Puryear v. State, 810 So.2d 901, 905 (Fla. 2002) (emphasis added). As explained below, we...