03-2257 MILLER V. STATE

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State: Florida

Court: Florida Third District Court

Docket No: 03-2257 MILLER V. STATE

Case Date: 11/24/2004

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., 2004 WILLIE MILLER, Appellant, vs. THE STATE OF FLORIDA, Appellee. ** ** ** ** ** ** Opinion filed November 24, 2004. An Appeal from the Circuit Court for Miami-Dade County, Kevin M. Emas, Judge. Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant. Charles J. Crist, Jr., Attorney General, and Jill Traina and Annette M. Lizardo, Assistant Attorneys General, for appellee. Before SHEVIN, WELLS and SHEPHERD, JJ. PER CURIAM. This is Willie Miller's direct appeal of a criminal LOWER TRIBUNAL NO. 03-1519 CASE NO. 3D03-2257

conviction and sentence for pawnbroker false verification and

dealing in stolen property.

There were three issues raised on

appeal, of which only one warrants discussion. For the reasons set forth below, we reverse the conviction of the defendant on the charge of pawnbroker false verification. At around 3:30 a.m. on December 27, 2002, the Homestead home of Jeffrey Ivey was broken into, and the burglar took a Burdines shopping bag, the contents of which were a gold name plate necklace reading "Jaliyah," a Sony Playstation II with game cassettes, DVD movies, music CDs and some cash. Jeffrey Ivey awakened and chased the intruder, until he ran out of the house and turned into another backyard. Ivey recognized the

Burdines bag because it had previously been under his Christmas tree, and had a small hole on the side of the bag. Ivey told the investigating officer that the burglar had a slim, slight build, and was possibly a teenager between 15 and 19 years of age. Two weeks later, the police asked Ivey to come to a nearby pawnshop to identify a necklace, which he did. employee of the pawn shop, identified Willie Juan Cairo, an Miller as the

person who tendered the necklace on the morning of December 27, 2002. Miller had filled out a Florida Pawnbroker Transaction

Form, showed his picture ID to prove he was Miller, and placed his thumbprint on the front of the form. Miller, who was around

5'10" and weighed 150 pounds, was then picked up by the police. Miller was 29-years old.

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The

defendant

was

charged

with

burglary

of

an

occupied

dwelling, grand theft, pawnbroker false verification and dealing in stolen property. identification thumbprint theory was from of the At trial, the prosecution provided the Ivey and Cairo, along with defendant's The defense the

pawnshop

transaction The

form.

misidentification.

defendant

proffered

following explanation: the jewelry fell out of the hole in the Burdines bag stolen by the real culprit, the defendant found the jewelry later on someone's yard and attempted to sell same for quick cash. At the close of trial, following a much contested jury instruction on whether the defendant had "knowledge" that the goods pawned were stolen, the case went to the jury. acquitted on burglary and grand theft, but found Miller was guilty of

pawnbroker false verification and dealing in stolen property. Miller received five years on the pawnbroker false verification count to run concurrently with a 20-year sentence for dealing in stolen property. Defendant now appeals his judgment of

conviction and sentence.1 We believe that the court erred in submitting a jury

instruction containing the following language: "the Defendant There were two other issues raised by the defendant: (1) whether the trial court abused its discretion by denying a challenge for cause to strike a juror, and (2) whether the court's denial of the defendant's motion for judgment of acquittal is supported by substantial competent evidence. We have considered same and find them to be without merit. 3
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made verification with knowledge that the item was not stolen." The jury sent a question about the second element as of the

pawnbroker

false

verification

instruction

originally

submitted,2 and the trial judge inserted the word "not" believing that it cured the instruction. word "not" would mean that the However, the insertion of the jury could find a defendant

guilty for selling something of his own, like his own watch, which he "knew was not stolen." the jury to convict a The revised instruction allows for pawnbroker false

defendant

verification on the basis of innocent conduct.

We believe that

the charge as modified was erroneous and requires a retrial. See Wiley v. State, 830 So. 2d 889, 890 (Fla. 1st DCA 2002) (reversing defendant's conviction where instruction failed to communicate the essential elements of false verification to the jury). Reversed and remanded for further proceedings.

The instruction as originally submitted to the jury read: . . . the State must prove the following three elements beyond a reasonable doubt: One, the defendant pawned the gold name plate necklace in the name of "Jaliyah." Two, the defendant made verification with knowledge that the item was stolen. And three, the defendant verified that he was the rightful owner of the item pawned and that he had the right to sell or pawn the item. 4

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