DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DAVID RINCON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-3830
[February 6, 2019]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2004-CF-
008074-AXXX-MB.
Carey Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley B. Moody, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for
appellee.
CIKLIN, J.
After a probation revocation hearing, the trial court found that the
appellant violated his probation by using cocaine and by committing
three new offenses: theft, dealing in stolen property, and providing false
verification of ownership to a secondhand dealer. The appellant raises
multiple issues on appeal. We agree with the appellant that the trial
court erred in finding that he provided false verification of ownership to a
secondhand dealer, and we reverse for resentencing. We find no merit in
the appellant’s other arguments.
The appellant was placed on probation for various offenses.
Subsequently, it was alleged that he violated his probation by using
cocaine and committing the new offenses. With respect to the false
verification of ownership offense, the state presented evidence
establishing that the appellant pawned items which his mother-in-law
had loaned him. In the first transaction, the appellant pawned an
electric pipe snake. In the second transaction, he pawned an electric leaf
blower and an A-frame ladder. The pawn receipts contain the appellant’s
signature and fingerprint but no statement verifying his ownership of the
property.
In July 2017, the appellant’s mother-in-law learned the items had
been pawned, and she reported the items as stolen, but acknowledged
that she had loaned the items to the appellant. A detective interviewed
the appellant, who admitted that he pawned the items.
At the close of evidence, defense counsel argued that the state did not
prove that the appellant provided a false verification of ownership. The
trial court rejected the argument, revoked the appellant’s probation on
multiple grounds, including a finding that he provided false verification
of ownership, and sentenced him to 25 years’ imprisonment.
On appeal, the appellant argues that there was insufficient evidence
that he provided false verification of ownership. We agree. “[T]he
appropriate standard of review for judgments finding probation violations
is whether the trial court abused its discretion in finding the violation.”
Webb v. State, 154 So. 3d 1186, 1188 (Fla. 4th DCA 2015). The state
must prove the alleged violation by a preponderance of the evidence. Id.
The appellant’s probation was revoked based in part on the
commission of a violation of section 538.04(4)(a), Florida Statutes (2017),
which provides that “[a]ny person who knowingly gives false verification
of ownership . . . and who receives money from a secondhand dealer for
goods sold, consigned, or traded” is guilty of a third-degree felony if the
“value of the money received is less than $300.” 1 The statute also
provides that the secondhand dealer must complete a transaction form
containing specified information, including the identifying information of
the person “from whom the goods were acquired,” that person’s
thumbprint, and a signed “statement verifying that the seller is the
rightful owner of the goods or is entitled to sell, consign, or trade the
goods.” § 538.04(1)(d), and (3), Fla. Stat.
Here, there was no testimony that the appellant claimed to be the
owner of the property. The pawnbroker did not testify. The detective
recounted his conversation with the pawnbroker, but nothing in that
conversation established that the appellant verified his ownership of the
property. The pawn receipts entered into evidence do not contain an
ownership verification provision. The form does not identify the
1The appellant does not argue on appeal that the statute did not apply to this
pawn transaction.
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appellant as the owner but only as the “pledgor/seller.” The transaction
forms do contain a verification that the pledgor/seller “agree[s] to all
terms and conditions of the front and back” and that “[u]nder penalty of
perjury [has] read the foregoing document, and the facts stated in it are
true.” But, importantly, the back pages of the transaction forms do not
appear in the record and were apparently not introduced into evidence at
trial.
The state argues that there was evidence that the appellant was not
the owner of the property. While that may be true, that was not
sufficient to prove that he gave a false verification of ownership. The
statute he was found to have violated criminalizes not the act of pawning
items which the person does not own but rather the provision of a false
verification of ownership.
Based on the foregoing, we affirm the revocation to the extent it was
based on the appellant’s cocaine use and commission of theft and
dealing in stolen property, but we reverse to the extent the revocation
was based on the false verification offense. We remand “to allow the trial
court to [re]-consider the sentence imposed based upon the . . .
supported violations” and to “correct the order revoking probation to
remove the . . . unsupported violations.” Whitehead v. State, 22 So. 3d
846, 849 (Fla. 4th DCA 2009).
Affirmed in part, reversed in part, and remanded with instructions.
WARNER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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