02-1553 S.P. V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 02-1553 S.P. V. STATE

Case Date: 12/26/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002

S.P., a juvenile, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** CASE NO. 3D02-1553 LOWER TRIBUNAL NO. 01-12527 **

Opinion filed December 26, 2002. An Appeal from the Circuit Court for Dade County, Mindy Glazer and Lester Langer, Judges. Bennett H. Brummer, Public Defender and Andrew Stanton, Assistant Public Defender, for appellant. Richard E. Doran, Attorney General and Richard L. Polin, Assistant Attorney General and Sarah B. Belter and Joseph Brophy, Certified Legal Interns, for appellee. Before SCHWARTZ, C.J., COPE and GODERICH, JJ. SCHWARTZ, Chief Judge. This is an appeal from an adjudication of delinquency based upon findings that the seventeen year-old male respondent, S.P., was guilty of loitering and prowling and resisting the arrest

for that offense without violence. I.

We reverse.

Under the decided cases, the behavior which formed the basis of the charge, which consisted of the boy's being seen by the arresting officer "standing over by [a cemetery] wall, by the bushes, crouched down by the bushes" near several vehicles

visiting the cemetery at two o'clock on Christmas Day afternoon,1 was insufficient to establish the elements of loitering and prowling (2001). as required by section 856.021, Florida Statutes

State v. Ecker, 311 So. 2d 104 (Fla. 1975), cert.

denied, 423 U.S. 1019 (1975); Gonzalez v. State, 828 So. 2d 496

1

The officer described what the respondent did thereafter: When I looked over there, he stood up, and he walked across, right across the street. Across 18th Avenue, there's a 7-11. * * *

I saw him walk straight across. He started walking around the gas island. He did two big circles around the gas island. This car left. I then went, because of the suspicious activity, I went, and I parked right in front of the 7-11. * * *

At that point, when all the cars left, he walked over to

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