ELS v. State, 547 So. 2d 298 (Fla. 3d DCA 1989). · Go Syfert
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ELS v. State, 547 So. 2d 298 (Fla. 3d DCA 1989). Cases Citing This Book View Copy Cite
31 citation events (12 in the last 25 years) across 2 distinct courts.
Strongest positive: Bertone v. State (fladistctapp, 2004-04-21)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) Bertone v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
See J.H. v. State, 868 So.2d 1237, 1238 (Fla. 4th DCA 2004) (concerning student who found cell phone in class and planned to return it to the classmate he thought it belonged to the next day); Dellechiaie v. State, 734 So.2d 423, 424-25 (Fla. 2d DCA 1998) (regarding defendant who obtained car from unknown man in return for hauling it off property); E.L.S. v. State, 547 So.2d 298, 299 (Fla. 3d DCA 1989) (involving driver who told defendant that truck belonged to driver's uncle); M.M. v. State, 547 So.2d 139 (Fla. 1st DCA 1989) (concerning defendant who borrowed motorcycle from a friend, giving …
discussed Cited as authority (rule) RM v. State
Fla. Dist. Ct. App. · 1999 · confidence medium
Similarly, in E.L.S. v. State, 547 So.2d 298, 299 (Fla. 3d DCA 1989), circumstantial evidence was deemed insufficient to prove theft of a vehicle where the juvenile presented an unrefuted, reasonable explanation that the driver told him the truck belonged to his uncle.
discussed Cited as authority (rule) R.M. v. State
Fla. Dist. Ct. App. · 1999 · confidence medium
Similarly, in E.L.S. v. State, 547 So.2d 298, 299 (Fla. 3d DCA 1989), circumstantial evidence was deemed insufficient to prove theft of a vehicle where the juvenile presented an unrefuted, reasonable explanation that the driver told him the truck belonged to his uncle.
discussed Cited as authority (rule) Jackson v. State
Fla. Dist. Ct. App. · 1999 · confidence medium
Weekly at D2052, 734 So.2d at 423 (regarding defendant who obtained car from unknown man in return for hauling it off property); E.L.S., 547 So.2d at 299 (involving driver who told defendant that truck belonged to driver's uncle); M.M., 547 So.2d at 139 (concerning defendant who borrowed motorcycle from a friend, giving friends's last name and offering to show officer where friend lived); R.M., 450 So.2d at 898 (involving defendant who borrowed vehicle from his stepfather); R.D.S., 446 So.2d at 1182 (regarding defendant who purchased moped from a boy named Rodney Middleton for $35); R.M., 412 …
discussed Cited "see" C.T. v. State
Fla. Dist. Ct. App. · 2017 · signal: accord · confidence high
In R.A.L., this Court held that the respondent’s unrefuted, exculpatory, and not unreasonable explanation of his possession of a stolen moped that he bought it at a flea market rendered the state’s case, which was based solely on the inference provided by Section 812.022(2), Florida Statutes (1979), without any additional incriminating circumstances, insufficient as a matter of law to establish guilt. 7 402 So. 2d at 1337 (footnote omitted); accord E.L.S. v. State, 547 So. 2d 298, 299 (Fla. 3d DCA 1989) (holding that the juvenile’s unrefuted, exculpatory, and not unreasonable explanation…
discussed Cited "see" C.T. v. State
Fla. Dist. Ct. App. · 2017 · signal: accord · confidence high
In R.A.L. , this Court held that the respondent's unrefuted, exculpatory, and not unreasonable explanation of his possession of a stolen moped that he bought it at a flea market rendered the state's case, which was based solely on the inference provided by Section 812.022(2), Florida Statutes (1979), without any additional incriminating circumstances, insufficient as a matter of law to establish guilt. *861 402 So.2d at 1337 (footnote omitted); accord E.L.S. v. State , 547 So.2d 298 , 299 (Fla. 3d DCA 1989) (holding that the juvenile's unrefuted, exculpatory, and not unreasonable explanation t…
cited Cited "see" GC v. State
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See E.L.S. v. State, 547 So.2d 298 (Fla. 3d DCA 1989) (Schwartz, C.J., concurring).
cited Cited "see" G.C. v. State
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See E.L.S. v. State, 547 So.2d 298 (Fla. 3d DCA 1989) (Schwartz, C.J., concurring).
discussed Cited "see" A.E. v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
Consequently, the state did not prove the statutorily required intent to deprive necessary for a theft conviction. § 812.014, Fla.Stat. (1987); see E.L.S. v. State, 547 So.2d 298 (Fla. 3d DCA 1989), R.M. v. State, 450 So.2d 897 (Fla. 3d DCA 1984); B.L.W. v. State, 393 So.2d 59 (Fla. 3d DCA 1981).
discussed Cited "see" AE v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
Consequently, the state did not prove the statutorily required intent to deprive necessary for a theft conviction. § 812.014, Fla. Stat. (1987); see E.L.S. v. State, 547 So.2d 298 (Fla. 3d DCA 1989), R.M. v. State, 450 So.2d 897 (Fla. 3d DCA 1984); B.L.W. v. State, 393 So.2d 59 (Fla. 3d DCA 1981).
discussed Cited "see, e.g." State v. GC
Fla. · 1991 · signal: see also · confidence low
See Allen, 362 So.2d at 12 (section 812.014 requires an "overt act manifesting criminal intent, rather than merely the formulation of a mental intent"); see also E.L.S. v. State, 547 So.2d 298 (Fla. 3d DCA 1989) (without evidence of separate criminal conduct, such as aiding and abetting the theft itself or being an accessory after the fact of the crime, a passenger may not be found guilty of an offense related to the vehicle, even if he is aware that it has been stolen) (Schwartz, C.J., specially concurring).
discussed Cited "see, e.g." State v. G.C.
Fla. · 1991 · signal: see also · confidence low
See Allen, 362 So.2d at 12 (section 812.014 requires an “overt act manifesting criminal intent, rather than merely the formulation of a mental intent”); see also E.L.S. v. State, 547 So.2d 298 (Fla. 3d DCA 1989) (without evidence of separate criminal conduct, such as aiding and abetting the theft itself or being an' accessory after the fact of the crime, a passenger may not be found guilty of an offense related to the vehicle, even if he is aware that it has been stolen) (Schwartz, C.J., specially concurring).
Retrieving the full opinion text from the archive…
E.L.S., a Juvenile, Appellant,
v.
The STATE of Florida, Appellee.
88-1260.
District Court of Appeal of Florida, Third District.
Aug 8, 1989.
547 So. 2d 298
Schwartz, C.J., and Nesbitt and Baskin.
Published
Pinpoint authority: bottom 48%

[*299] Bennett H. Brummer, Public Defender, and Henry H. Harnage, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Joni B. Braunstein, Asst. Atty. Gen., and Elena Evans, Certified Legal Intern, for appellee.

Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.

PER CURIAM.

We reverse the order adjudicating E.L.S. delinquent because we find that his conviction for theft is not supported by the record. The state failed to prove that E.L.S. knew the truck in which he was riding was stolen. State v. Lewis, 364 So.2d 1223 (Fla. 1978); State v. Allen, 362 So.2d 10 (Fla. 1978); R.M. v. State, 450 So.2d 897 (Fla. 3d DCA 1984); R.M. v. State, 412 So.2d 44 (Fla. 3d DCA 1982). His unrefuted, exculpatory, and not unreasonable, explanation that the driver told him the truck belonged to the driver's uncle from whom it had recently been stolen and to whom it had been returned precluded conviction under section 812.014, Florida Statutes (1987). R.M., 450 So.2d at 897; R.M., 412 So.2d at 44; B.L.W. v. State, 393 So.2d 59 (Fla. 3d DCA 1981); see also, P.L.C. v. State, 458 So.2d 800 (Fla. 3d DCA 1984); R.D.S. v. State, 446 So.2d 1181 (Fla. 3d DCA 1984); R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981).

Reversed and remanded.

NESBITT and BASKIN, JJ., concur.

SCHWARTZ, Chief Judge (specially concurring).

While I do not disagree with the holding of the majority, I would reverse on a much broader ground. I believe that, as opposed to the driver, one's status as a passenger in the vehicle involves none of the conduct proscribed by section 812.014(1) of the Florida Anti-Fencing Act (1987).[1] See § 812.012, Fla. Stat. (1987).[2] Specifically, a passenger neither takes "control," § 812.012(2)(a), or makes "use," § 812.012(2)(b), of the vehicle so as to render his conduct within a present equivalent of the former crime of "buying, receiving and concealing" (BRC) stolen property. Thus, without other evidence of separate criminal conduct — such as aiding and abetting the theft itself or being an accessory after the fact of the crime — a passenger may not be found guilty of an offense related to a vehicle, even if arguendo and unlike the present case, he is perfectly aware that it has been stolen.[3]

Thus, I would hold that a hitchhiker or joy rider like E.L.S. who merely gets into or stays in a car, even knowing that it has been stolen by the driver, is simply not[*300] guilty of any statutory crime.[4]W.J. v. State, 406 So.2d 60 (Fla. 3d DCA 1981). I necessarily believe, therefore, that D.N. v. State, 529 So.2d 1217, 1221 (Fla. 1st DCA 1988), which, although recognizing that "a finding of guilt in these situations seems rather farfetched," reaches just that conclusion, was wrongly decided and should not be followed.

1 812.014 Theft. —

(1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, 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.

2 812.012 Definitions. —

* * * * * *

(2) "Obtains or uses" means any manner of:

(a) Taking or exercising control over property.

(b) Making any unauthorized use, disposition, or transfer of property.

(c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise.

(d) 1. Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception; or

2. Other conduct similar in nature.

3 By like reasoning, the passenger is not in "possession" of a vehicle within the meaning of § 812.012(2)(a) so as to raise the statutory inference of guilty knowledge as provided by that statute. See Maisler v. State, 425 So.2d 107, 108 (Fla. 1st DCA 1982) (ability to maintain control over contraband as well as knowledge of presence necessary to prove constructive possession), pet. for review denied, 434 So.2d 888 (Fla. 1983). The issue is essentially irrelevant, however, since, as I have said, even guilty knowledge is not sufficient to constitute a crime. J.L.B. v. State, 396 So.2d 761, 762 (Fla. 3d DCA 1981) ("no crime can be committed by bad thoughts alone"); accord W.J. v. State, 406 So.2d 60 (Fla. 3d DCA 1981).
4 Although I need not reach the question at the present time, it may be that any statute which attempts to criminalize such conduct would be unconstitutional as seeking to penalize essentially innocent activity, see Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir.1980); State v. Walker, 444 So.2d 1137 (Fla. 2d DCA 1984), aff'd, 461 So.2d 108 (Fla. 1984), or as an interference with First Amendment rights of free association. Sawyer, 615 F.2d at 311.