Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CHARLES ANTHONY WHITE, ) ) Appellant, ) ) v. ) Case No. 2D18-2732 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed January 3, 2020. Appeal from the Circuit Court for Polk County; Keith P. Spoto, Judge. Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee. KELLY, Judge. Charles Anthony White appeals from his judgment and sentences for burglary of a dwelling and criminal mischief. He argues that the evidence was insufficient to support his convictions and that his defense counsel was ineffective for failing to adequately raise this issue below. We agree and reverse. White was charged with burglary of a dwelling, grand theft, criminal mischief, possession of methamphetamine, and possession of drug paraphernalia after he was discovered inside a trailer owned by Hammock Lake Estates mobile home park. The trailer was vacant at the time of the incident but White had showered there on previous occasions with the consent of the then current renter. On approximately July 9, 2017, the park property manager went inside the trailer and noticed that a television was missing; he did not notice any other damage. A couple of days later, White was seen sitting inside of the trailer's screened porch by a member of the mobile home park's cleaning staff. The property manager was notified and called police. Thereafter, the property manager inspected the trailer and discovered that the blinds and the shower had been damaged. At the conclusion of the State's evidence, White's counsel unsuccessfully argued for a judgment of acquittal on the grand theft charge. However, defense counsel made no arguments regarding the sufficiency of the evidence to support the criminal mischief and burglary charges. In fact, defense counsel argued that the evidence was "probably enough to get to the trier of fact . . . on everything except the TV theft." Defense counsel renewed the motion for judgment of acquittal but, once again, made no argument concerning the sufficiency of the State's evidence for the criminal mischief and burglary charges. "The general rule is that a claim of ineffective assistance of counsel may not be raised on direct appeal." Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002). However, "[o]n rare occasions, the appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the -2- prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable." Id. "[T]he failure to move for a judgment of acquittal when there are serious concerns pertaining to the sufficiency of the evidence presented by the prosecution may constitute ineffective assistance reviewable on direct appeal." Monroe v. State, 191 So. 3d 395, 403 (Fla. 2016). It is apparent from the record that the failure of White's counsel to move for a judgment of acquittal on the criminal mischief and burglary charges constituted ineffective assistance. See id. In order to establish criminal mischief, the State is not only required to prove that the defendant damaged the property of another, but that the damage was done willfully and maliciously. See § 806.13(1)(a), Fla. Stat. (2017); see also Stinnett v. State, 935 So. 2d 632, 634 (Fla. 2d DCA 2006) ("To be guilty of [criminal mischief] the defendant must specifically intend to damage or destroy the property of another."). Here, the State presented no evidence that White damaged the inside of the trailer. Furthermore, even if White had caused the damage, there was no evidence that he acted maliciously as required by the statute. Therefore, had defense counsel made a proper motion, White would have been entitled to a judgment of acquittal on this charge. See id. In order to prove burglary of a dwelling, there must be evidence to support a finding that the defendant entered or remained in a dwelling "with the intent to commit an offense therein." § 810.02(1)(b)(1), Fla. Stat. (2017). Again, the State presented no evidence, direct or circumstantial, that White had an intent to commit a crime when he entered the trailer. And while stealthy entry into a structure can establish prima facie -3- evidence of intent to commit an offense therein, see § 810.07(1), nothing in this record supports such a finding. A defendant acts stealthily when his actions are done in a furtive or clandestine manner to avoid discovery. J.A.S. v. State, 952 So. 2d 638, 640 (Fla. 2d DCA 2007). The State offered no evidence to show that White entered the trailer in a stealthy manner. Although the property manager testified that his maintenance employee told him that the padlock securing the screened door to the trailer was locked at 11:30 the night before White was discovered, the padlock was found unlocked and undamaged on a shelf inside of the trailer and there was no sign of damage to the hasp. While there was damage to the screen and screened door, there was no evidence that White caused the damage or when the damage occurred. In fact, the property manager testified that the damage could have existed well before this incident. Finally, it does not appear that White was trying to conceal his whereabouts—his bike was parked outside of the trailer and he was sitting on the porch of the trailer at 11:30 in the morning. Accordingly, we reverse White's convictions for criminal mischief and burglary of a dwelling and remand for proceedings consistent with this opinion. Reversed and remanded. CASANUEVA and LaROSE, JJ., Concur. -4-