K.R.R. v. State

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM; RYDER, A.C.J., HALL, J., and REESE, THOMAS S.
• Citation: K.R.R. v. State, 629 So.2d 1068 (Fla. App. 1994)
• Decision Date: 05 January 1994
• Docket Number: No. 92-04086,92-04086
• Parties: 19 Fla. L. Weekly D102 K.R.R., a child, Appellant, v. STATE of Florida, Appellee.

Page 1068

629 So.2d 1068

19 Fla. L. Weekly D102

K.R.R., a child, Appellant, v. STATE of Florida, Appellee.

No. 92-04086.

District Court of Appeal of Florida Second District.

Jan. 5, 1994.

James Marion Moorman, Public Defender, and D.P. Chanco, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Helene S. Parnes, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Defendant, a juvenile, argues that trial court erred in adjudicating him delinquent upon finding he had committed the offense of loitering and prowling, in violation of section 856.021, Florida Statutes (1991). He argues that the evidence of loitering and prowling was legally insufficient. We reverse.

In response to a report of an automobile theft in progress at a funeral parlor in downtown Lake Wales on August 30, 1992, Officer Goolsby was searching the area for suspects. Ten minutes after receiving the report, at 12:30 a.m., Goolsby spotted defendant and his companion, who were walking on railroad tracks, about 300 yards from the funeral parlor.

Goolsby testified that the two were coming from the general direction of the funeral parlor and were the only individuals in the area at the time. No residences are nearby, only businesses. He testified that based on his experience, people are not normally seen walking in the area after midnight. He indicated that the city of Lake Wales' teenage curfew was from the hours of 10:30 p.m. to 6:00 a.m. However, defendant was not cited for violating the curfew. At the conclusion of trial, the court found:

I find that due to the unusual hour and the unusual location, it's at a location where there's been a reported crime I find that he is guilty of loitering and prowling, there's been no reasonable explanations for his presence.

We conclude that the trial court erred. Under section 856.021(1) and E.B. v. State, 537 So.2d 148, 149 (Fla. 2d DCA 1989), a conviction

requires proof that: (1) the defendant was loitering or prowling in a place, at a time, or in a manner unusual for a law-abiding individual under (2) circumstances that warrant a justifiable and reasonable alarm or concern for the safety of persons or property in the vicinity. In considering the second element, courts have found that the behavior must imminently threaten the safety of persons or property. State v. Ecker, 311 So.2d 104 (Fla.1975), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975).

Also, alarm is presumed under the statute if, when a law officer appears, the defendant flees, conceals himself or any object, or refuses to identify himself. Sec. 856.021(2). Prior to any arrest, the defendant must be afforded an opportunity to dispel any alarm or immediate concern by identifying himself and explaining his presence and conduct. Id.; Ecker. We conclude that the instant facts are legally insufficient under the statute, E.B. and Ecker.

Unquestionably, under the circumstances, Goolsby's stop of defendant was proper, in light of the reported crime at the nearby funeral parlor. However, since the offense of loitering and prowling is a misdemeanor, all elements of the offense must occur in the officer's presence. T.T. v. State, 572 So.2d 21 (Fla. 4th DCA 1990). See T.L.F. v. State, 536 So.2d 371, 372 (Fla. 2d DCA 1988). The fact remains that Goolsby never actually saw defendant do anything in his presence other than walk along railroad tracks at 12:30 a.m. This may be a violation of the Lake Wales curfew, for which in any event he was not cited, but it otherwise in itself appears to be legally insufficient evidence of loitering and prowling. See T.T. (juvenile observed at 8:30 p.m. as a passenger in a car in a parking lot behind a closed business); E.B. (boys observed riding on bicycles at 2:45 a.m.); D.A. v. State, 471 So.2d 147 (Fla. 3d DCA 1985) (juvenile observed standing by a stolen motor vehicle and then fleeing); T.L.F. v. State, 536 So.2d 371, 372 (Fla. 2d DCA 1988) (juvenile observed "conversing with two other individuals during business hours" near an office building).

The state places much stress on the circumstance that defendant...