dissenting.
I respectfully dissent. At the close of the evidence in the state’s case, the following exchange occurred between defense counsel and the court:
MS. WHITAKER: Make a motion for judgment of acquittal at this time. I don’t believe the state established a prima facie case of grand theft against this child.
THE COURT: Denied.
MS. WHITAKER: Call Lenodi Sanchez.
The defense presented the testimony of the defendant and two other witnesses. Thereafter, the defense rested and did not renew its motion for a judgment of acquittal nor file a motion for a new trial.
I do not agree with the majority that the defendant’s motion for judgment of acquittal was sufficient to preserve the issue for appeal. The majority relies upon Jaggers v. State, 536 So.2d 321 (Fla.2d DCA 1988). Jaggers, however, states:
We do not agree that the motion below was too nonspecific or that we are powerless to review absent fundamental error. Appellant’s motion below clearly stated that the motion was based upon the state’s failure to “prove a prima facie case” of capital sexual battery. It is clear from the record that the trial judge and counsel for the state understood and approached consideration of the motion from the standpoint of whether the evidence was sufficient to prove the essential element, penetration of the alleged victims, so as to sustain the charges of capital sexual battery of children under the age of eleven years. We find that there was a total lack of reliable evidence to support the element of penetration in regard to the two counts of sexual battery involving appellant’s daughter and stepdaughter.
Jaggers, 536 So.2d at 323 (emphasis in original). I conclude that Jaggers holds that when the defense presents a bare-bones motion for judgment of acquittal to the trial court, the matter may be preserved for appellate review if the argument on the motion focuses on an element of proof in the state’s case. In this case, there was no argument on the motion, and neither the defense, the state, nor the trial court focused on any element of grand theft. I, therefore, conclude that the issue was not preserved for appeal.