G.C. v. State

• Decision Date: 30 January 1990
• Docket Number: No. 88-2571,88-2571
• Parties: 15 Fla. L. Weekly D1107, 15 Fla. L. Weekly D288 G.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1186

560 So.2d 1186

15 Fla. L. Weekly D1107, 15 Fla. L. Weekly D288

G.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.

No. 88-2571.

District Court of Appeal of Florida Third District.

Jan. 30, 1990.

On Denial of Rehearing April 24, 1990.

Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Joni Braunstein, Asst. Atty. Gen., and Ada Manzano, Certified Legal Intern, for appellee.

Before HUBBART, BASKIN and COPE, JJ.

COPE, Judge.

G.C. appeals an adjudication of delinquency for burglary and theft of an automobile, and a related order of restitution. We affirm in part and reverse in part.

G.C., a fourteen year old juvenile, accepted a ride from a friend who was driving a stolen car. The attention of law enforcement was soon drawn to the vehicle because the driver could barely see over the steering wheel. When police officers halted the car, the driver left the vehicle without properly applying the brake. The vehicle rolled down a hill, collided with another vehicle, and was extensively damaged. In a post-arrest statement, G.C. indicated that when he entered the car he observed the broken condition of the steering column and suspected the car was stolen. The trial court adjudicated G.C. delinquent and ordered $4,000 in restitution.

On appeal G.C. contends that being a passenger in a stolen automobile, without more, is not sufficient to support a charge of theft or burglary of an automobile. We agree.

Section 812.014, Florida Statutes (1987), defines theft as follows:

(1) A person is guilty of theft if he knowingly obtains or uses ... the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit therefrom.

(b) Appropriate the property to his own use or to the use of any person not entitled thereto.

The phrase "obtains or uses" is broadly defined to encompass any use, including unauthorized use. Id. § 812.012(2). As a passenger, G.C. undoubtedly "used" the property within the statutory meaning.

Use alone, however, is not enough. The statute requires an additional element: an intent, in substance, to work a deprivation or appropriation of the owner's property. Id. See generally State v. McNeill, 407 So.2d 1021, 1022 (Fla. 4th DCA 1981), approved, State v. Dunmann, 427 So.2d 166, 169 (Fla.1983). In the context of an automobile theft, that intention would be shown, if not by aid or participation in the taking of the vehicle, then by some exercise of dominion and control over it afterwards. In the present case the vehicle had already been stolen by the driver, who retained control throughout. The record does not reflect the exercise by G.C. of dominion and control over the vehicle so as to take some step toward working the deprivation or appropriation of the vehicle, as required by the statute. See E.L.S. v. State, 547 So.2d 298 (Fla. 3d DCA 1989) (Schwartz, C.J., concurring). It is, of We have not overlooked the Florida Supreme Court's decision in State v. Dunmann. There the court concluded that the "obtains or uses" terminology of the theft statute includes an intent to temporarily deprive an owner of his property. 427 So.2d at 167-68. ¹ In so holding, the court determined that the theft statute had left the joy-riding statute, § 812.041, Fla.Stat. (1981) (repealed 1982), with no valid field of operation. 427 So.2d at 167-69 & fn. ² Arguably, of course, G.C.'s conduct was joy-riding, which former section 812.041 proscribed, and if all conduct described by former section 812.041 has been subsumed in the current theft statute, it would follow that G.C. is guilty of theft. The most logical interpretation of Dunmann, however, is that it involved only the prosecution of persons accused of actively operating the vehicles in question. Each appellant in Dunmann had been charged with a separate, unrelated count of grand theft, and no appellant was identified as a passenger. Each appellant was said to have had the intent to temporarily deprive each owner of his or her property, and the question was whether an intent to work a temporary deprivation constituted theft. Dunmann did not address the question presented here: the application of the theft statute to a passenger in a stolen car. For the reasons stated, we conclude that G.C.'s conduct did not constitute theft under section 812.014.

course, possible to argue that any use of the stolen vehicle, even by an after-acquired passenger, is inconsistent with the interests of the owner and therefore constitutes a statutory deprivation or appropriation of the property. See D.N. v. State, 529 So.2d 1217 (Fla. 1st DCA 1988). To so hold would, however, reduce the statutory criterion purely to that of unauthorized use. See id. at 1221 ("We must observe ... that such a broad interpretation of this statutory concept ... can lead to bizarre, if not absurd, results"). In order to give effect to all of the statutory elements, and in view of the fact that unauthorized presence within a motor vehicle is already proscribed by another statute, § 810.08, Fla.Stat. (1987), we conclude that the theft statute does not reach G.C.'s conduct. We acknowledge that our holding on this point is in direct and express conflict with D.N. v. State.

G.C. was also charged with burglary of an automobile, § 810.02, Fla.Stat. (1987), by entering or remaining in the vehicle without the consent of the owner, and with the intent to commit an offense, namely, the theft of the vehicle. Because the theft charge fails, the burglary charge also must fail.

Although the theft and burglary charges cannot be sustained, G.C.'s conduct violated section 810.08, Florida Statutes (1987), which prohibits trespass to a conveyance. That statute imposes a misdemeanor penalty on one who "without being authorized, licensed, or invited, willfully enters or remains in any ... conveyance...." ³ Based on the allegations of the petition, and the proof at trial, the violation of section 810.08 is a lesser included offense of the burglary with which G.C.

was charged. See B.D. v. State, 412 So.2d 70, 70-71 (Fla. 1st DCA 1982) (trespass as lesser included offense of burglary); J.B. v. State, 405 So.2d 247, 248 (Fla. 3d DCA 1981) (attempted trespass, burglary). See generally Fla.Std. Jury Instr. (Crim.) p. 283 (1981 ed.); Brown v. State, 206 So.2d 377, 381-83 (Fla.1968). ⁴ The interpretation we reach provides an appropriate sphere for operation of each of the statutes--theft, burglary, and trespass to a conveyance. ⁵

The final issue is that of restitution. The trial court awarded $4,000 restitution against G.C., which represented all of the damage to the car. Most, if not all, of the damage was caused by the driver, first, when he stole the vehicle, and second, when he negligently parked it so that it rolled away and was damaged. Since the defendant must have caused the damage or loss, at least indirectly, in order to support an order of restitution, § 775.089(1)(a), Fla.Stat. (1987), the order must be reversed insofar as it relates to the driver's separate conduct. See State v. Williams, 520 So.2d 276, 277-78 (Fla.1988). We remand for a new hearing to ascertain the damage amounts, if any, attributable directly or indirectly to G.C.'s trespass.

We therefore affirm the adjudication of delinquency on the basis of trespass to a conveyance, and reverse insofar as the adjudication rested on the offenses of theft and burglary of a conveyance. We reverse the order of restitution and remand for a new hearing.

Affirmed in part, reversed in part, and remanded.

ON DENIAL OF REHEARING

G.C. has moved for a rehearing, contending that on the basis of the court's opinion, he is entitled to have the adjudication of delinquency reversed and to be discharged. We disagree.

In the instant case we held that G.C.'s being a passenger in a stolen automobile did not, without more, render him guilty of theft or burglary of a conveyance. We affirmed the adjudication of delinquency, however, on the basis that the record demonstrated G.C. had committed the lesser included offense of trespass to a conveyance. See § 810.08, Fla.Stat. (1987).

G.C. contends that we are without authority to sustain the adjudication of delinquency on the ground that he was guilty of the lesser offense. He relies on a portion of the criminal appeals statute, section 924.34, Florida Statutes (1989), which provides:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

(Emphasis added). G.C. argues that the phrase "lesser offense necessarily included in the offense charged" refers only to those offenses described in category one of the Schedule of Lesser Included Offenses within the Standard Jury Instructions, see Fla.Std.Jury Instr. (Crim.) at 283 (1981 ed.) or category three of Brown v. State, 206 So.2d 377, 381-82 (Fla.1968). Since trespass to a conveyance is an offense which may or may not be included in the offenses charged, it is neither a Standard Jury Instructions category one nor a Brown category three offense. It follows, according to G.C., that we were without authority to sustain the adjudication of delinquency on the ground that the juvenile was guilty of the lesser offense of trespass.

The short answer is that chapter 924 does not apply to juvenile cases. State v. C.C., 476 So.2d 144, 146 (Fla.1985). Juvenile appeals are governed by the Florida Juvenile Justice Act, chapter 39, Florida Statutes (1989). 476 So.2d at 146; D.A.E. v. State, 478 So.2d 815 (Fla.1985); see § 39.14, Fla.Stat. (1989).

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