Council v. State

Jan 10, 1984
No. 82-2307
Versions:443 So. 2d 440
1984 Fla. App. LEXIS 11328

Lead Opinion

BASKIN, Judge.

Defendant Joseph Council was convicted of grand theft second degree based upon his presentation of a $175 check to a package store employee for cashing. The trial court withheld adjudication and placed him on probation for one year. We reverse.

Section 812.014, Florida Statutes (1981) requires proof of intent to deprive another person of a right to or benefit from the property involved. The state presented no evidence of Council’s intent to commit theft, State v. Allen, 362 So.2d 10 (Fla. 1978), and failed to establish that Council knew the cheek he had received in payment for homosexual activities was worthless. See Myers v. State, 115 Fla. 627, 155 So. 797 (1934); Anderson v. State, 338 So.2d 209 (Fla. 3d DCA 1976), cert. denied, 352 So.2d 174 (Fla.1977); Spurlock v. State, 281 So.2d 586 (Fla. 4th DCA 1973). The account on which the check was drawn had been closed, but the state did not call the *441drawer of the check as a witness. Thus, Council’s explanation that he believed the check to be good was unrefuted and constituted a reasonable hypothesis of innocence requiring reversal. Fisk v. State, 138 Fla. 815, 190 So. 10 (1939); A.R. v. State, 393 So.2d 1174 (Fla. 3d DCA 1981). The circumstantial evidence that a caller had attempted to verify the check while Council left the store may have demonstrated Council’s desire to hasten the transaction, but did not establish that Council knew the check was worthless.

Reversed.





Dissenting Opinion

BARKDULL, Judge,

dissenting.

I respectfully dissent. It was the province of the fact-finder to determine whether, under the circumstantial evidence, the hypothesis of innocence advanced by the defendant was not reasonable. Newberry v. State, 442 So.2d 334 (Fla. 5th DCA 1983). It is not for an appeal court to substitute its judgment for that of the fact-finder. State v. Smith, 249 So.2d 16 (Fla.1971); E.Y. v. State, 390 So.2d 776 (Fla. 3d DCA 1980); Wright v. State, 351 So.2d 1127 (Fla. 1st DCA 1977). I cannot say under the evidence presented that the fact-finder could not have reached the conclusion it did as to the defendant’s guilt and therefore I would affirm.