Von Goff v. State, 96-03977
| Decision Date | 05 February 1997 |
| Docket Number | No. 96-03977,96-03977 |
| Citation | 687 So.2d 926 |
| Parties | 22 Fla. L. Weekly D386 Anthony VON GOFF, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Julianne M. Holt, Public Defender; and Shea T. Moxon, Assistant Public Defender, Tampa, for Petitioner.
Robert A. Butterworth, Attorney General, Tallahassee; and Jon J. Johnson, Assistant Attorney General, Tampa, for Respondent.
Anthony Von Goff petitions this court to issue a writ of certiorari on the ground that the circuit court departed from the essential requirements of law in affirming his county court conviction for loitering and prowling. We agree that the evidence at appellant's nonjury trial was legally insufficient to support the conviction. We, therefore, grant the petition for certiorari, quash the circuit court's order affirming his conviction, and remand with directions to the circuit court to enter an order discharging appellant.
Sergeant Lane of the Plant City Police Department testified at appellant's nonjury trial in county court that at approximately 9:00 p.m. on September 20, 1995, he observed appellant "sitting around the bathroom area located next to some dumpsters alongside the Coastal Mart." The officer stated that during the last several months there had been "numerous shootings, robberies, prostitutes working out of the restroom area, and we made some drug cases there and open container arrests at the same store." The officer's testimony was that appellant was "just sitting" there. During the time the officer observed appellant, he did not see an open container, prostitutes around the restroom, or any evidence of drug dealing. Furthermore, the store was open for business. The officer indicated that he approached appellant and asked what he was doing there. Appellant stated he was waiting for a friend, but refused to give the officer his friend's name. Appellant also refused to give the officer his name stating that he did not have to tell it to him. The officer then arrested appellant for loitering and prowling. After the state rested, appellant moved for a judgement of acquittal on the ground there was no imminent breach of the peace or threat to public safety as required by section 856.021(1), Florida Statutes (1995). Appellant renewed his motion for judgement of acquittal at the close of the defense's case. 1
The test we must apply in reviewing appellant's petition for certiorari is whether there has been a departure from the essential requirements of law resulting in a miscarriage of justice. Combs v. State, 436 So.2d 93 (Fla.1983); Haines City Community Development v. Heggs, 658 So.2d 523 (Fla.1995). In Gonzalez v. State, 443 So.2d 425 (Fla. 2d DCA 1984), the defendant sought a writ of certiorari on the ground that the circuit court departed from the essential requirements of law in affirming his county court conviction. The defendant was convicted at nonjury trial. In his appeal to the circuit court he claimed that the evidence was legally insufficient to support the conviction. The Gonzalez court stated that "[w]hile certiorari cannot be used by a defendant to attempt a reevaluation of the probative weight of the evidence, nevertheless, when there is no evidence on a material element of the crime, it is appropriate that certiorari be granted notwithstanding an affirmance of a conviction by the circuit court sitting in its appellate capacity." Gonzalez, 443 So.2d at 426. (citations omitted). Although the Gonzalez court did not explicitly say so, where, at trial, the state presents no evidence of a material element of a crime and the defendant is convicted, this would constitute a miscarriage of justice.
The offense of loitering and prowling contains two elements: first the accused must be loitering and prowling in a manner not usual for law-abiding citizens; and second, the loitering and prowling must be under circumstances that threaten the public safety. State v. Ecker, 311 So.2d 104 (Fla.), cert. denied, Bell v. Florida, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975). With regard to the second element, "the police officer must be able to point to specific and articulable...
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Grant v. State, 4D02-839.
...be under circumstances that warrant concern for the public safety. See § 856.021(1), Fla. Stat. (2000); see also Von Goff v. State, 687 So.2d 926, 928 (Fla. 2d DCA 1997); Springfield v. State, 481 So.2d 975, 976-77 (Fla. 4th DCA 1986). "The gist of the first element is conduct which comes c......
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