Mitchell v. State

516 So. 2d 22, 12 Fla. L. Weekly 2641, 1987 Fla. App. LEXIS 11098, 1987 WL 1576

Opinion

PER CURIAM.

The circuit court affirmed a county court non-jury finding and adjudication that the petitioner-defendant was guilty of the petit theft of certain cactus plants in an incident which arose from a prolonged dispute between neighbors.¹ On this petition for cer-tiorari review, we find no evidence whatever of essential elements of the offense, including those that the defendant had “obtain[ed] or use[d],” § 812.014(1), Fla.Stat. (1985), the property in question or, in view of the unrebutted evidence that she believed in good faith that she had a right to the plants, that she possessed the requisite criminal intent. Rodriguez v. State, 396 So.2d 798 (Fla. 3d DCA 1981); 16 FlaJur. 2d Criminal Law § 1389 (1979). Since the appellate approval of a judgment which is totally unsupported by the record constitutes a departure from the essential requirements of the law, Lee v. State, 374 So.2d 1094 (Fla. 4th DCA 1979); 3 FlaJur. 2d Appellate Review § 515 (1978), the decision under review is quashed and the cause remanded with directions to require the county court to discharge the defendant.

Certiorari granted.

1 . See Rodriguez v. State, 396 So.2d 798, 800 n. 7 (Fla. 3d DCA 1981) ("a controversy such as this seems more appropriately the subject of a civil action than a criminal prosecution").