Gonzalez v. State, 3D02-1291.

• Decision Date: 23 October 2002
• Docket Number: No. 3D02-1291.,3D02-1291.
• Citation: 828 So.2d 496
• Parties: Alexei GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

828 So.2d 496

Alexei GONZALEZ, Appellant, v. The STATE of Florida, Appellee.

No. 3D02-1291.

District Court of Appeal of Florida, Third District.

October 23, 2002.

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

Robert A. Butterworth, Attorney General, and Michael J. Neimand, Assistant Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.

Before GREEN, SHEVIN and RAMIREZ, JJ.

SHEVIN, Judge.

Alexei Gonzalez appeals an order revoking probation and imposing sentence. We reverse.

The trial court revoked Gonzalez's probation finding that he violated a condition of probation by committing the crime of loitering and prowling. The testimony revealed that at approximately 9:30 p.m. an undercover officer observed a car being driven around for several minutes in a commercial area in which all the businesses were closed. The area had a high volume of burglaries. He saw Gonzalez, a passenger, exit the car, and shine a flashlight into the glass door of a business for five to ten seconds. When Gonzalez exited the car, the driver had turned off the car lights. Gonzalez then re-entered the car and they drove around before leaving the area.¹ An officer stopped the car thirteen blocks from the business and arrested Gonzalez for loitering and prowling. On appeal, Gonzalez argues that the court erred in revoking his probation as the evidence does not show that he committed the crime of loitering and prowling. We agree.

The offense of loitering and prowling requires proof that "1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; and 2) such loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity." A.D. v. State, 817 So.2d 1027, 1028 (Fla. 3d DCA 2002) (quoting State v. Ecker, 311 So.2d 104, 106 (Fla.1975)); § 856.021, Fla. Stat. (2002). Assuming that the state established the first element, it failed to prove the second element.

There is insufficient evidence supporting the trial court's conclusion that Gonzalez committed the offense of loitering and prowling. The evidence shows that Gonzalez shined a flashlight into the glass door of a closed business at 9:30 p.m. for five to ten seconds and then left the area. Shortly thereafter, an officer stopped him thirteen blocks away. These actions do not demonstrate "incipient criminal behavior" amounting to "an imminent breach of the peace or an imminent threat to public safety." D.A. v. State, 471 So.2d 147, 152 (Fla. 3d DCA 1985) (emphasis added). Gonzalez's "behavior did not imminently threaten the safety of persons or property," T.W. v. State, 675 So.2d 1018, 1019 (Fla. 2d DCA 1996), as he departed the area soon after he had looked into the front door of the business. Thus, the facts do not satisfy the "alarm" element of a loitering and prowling offense. See T.W. v. State,...