
    T.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-1469.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2001.
    Carey Haughwout, Public Defender, and Benjamin W. Maserang, Assistant Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

This juvenile was charged with grand theft and burglary of a structure. The facts proved at trial showed that two officers were dispatched to an apartment complex where a security guard led them to the fenced-in pool area. There they saw two individuals and watched as one attempted to gain entrance to a rest room, while the other was attempting to do something with a golf cart already lying on its side. Neither officer saw the person actually place the cart on its side, and neither could say exactly what was being done to the cart, other than that the person was “tinkering” with it.

As the officers approached the two persons, they began to flee. Each of the officers apprehended one of the persons, and they placed them both in custody. Returning to the pool area fence, the officers found a hole cut into the fence with wire cutters lying immediately below on the ground. The officer who inspected the cart could find nothing wrong with it, and they could not say that anything was actually taken from the complex. Their testimony merely identified defendant as one of the two individuals apprehended on the night in question.

Defendant moved for a judgment of acquittal. Contrary to the state’s argument on appeal, the motion was sufficient. It specifically contended that the state had failed to prove a prima facie case. The motion was so phrased as to adequately raise the issue whether the state had offered evidence on each and every element of the crime charged. See R.S. v. State, 639 So.2d 130, 131 (Fla. 2d DCA 1994) (holding that “I don’t believe the state established a prima facie case of grand theft against this child” was sufficient to raise issue).

We find the state’s evidence insufficient to prove the crime of grand theft. The testimony was clear that the officers could find no evidence of anything missing. There was no evidence of any value. Nor did the testimony identify defendant as the person who was tinkering with the cart. The cart was already on its side when the witnesses came on the event, and no one said anything about either person attempting to take it away.

As there was sufficient evidence of breaking and entering, and the security guard testified as to ownership of the premises and the lack of consent for defendant to be there, we affirm the burglary conviction.

TAYLOR, J., concurs.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

specially concurring.

I agree with the majority opinion but am writing to address the sufficiency of the defendant’s motion for judgment of acquittal to preserve the issue for review. This motion did not comply with the rule requiring that a specific legal argument be made in the trial court, in order to preserve the issue for review. Tillman v. State, 471 So.2d 32 (Fla.1985). Nor did it comply with Florida Rule of Criminal Procedure 3.380(b), which requires a motion for JO A to “fully set forth the grounds.... ”

In this case, however, it was obvious what the specific basis of the motion was, because the state had not proved that anything had been taken, which is the essence of the crime of grand theft. In addition, a “conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error.” Troedel v. State, 462 So.2d 392, 399 (Fla.1984).

Under different circumstances, however, I would not be so quick to agree that a bare-bones motion for judgment of acquittal was either sufficient to preserve the error or that the error could be raised for the first time on appeal as fundamental error. As the third district explained in Johnson v. State, 478 So.2d 885, 886 (Fla. 3d DCA 1985), a case in which the state forgot to establish the age of the victim:

[Cjounsel failed to comply with Fla. R.Crim.P. 3.380(b) which requires that the motion for judgment of acquittal “must fully set forth the grounds upon which it is based.” Had counsel complied with the rule and specifically brought the ground now urged to the trial court’s attention, the error, if any, might have been cured by allowing the state to re-open its case and supply the missing, technical element of age. Under these circumstances, then, the defendant may not now raise the point urged herein for the first time on appeal.

See also Burrell v. State, 601 So.2d 628 (Fla. 2d DCA 1992)(concluding that conviction of a crime, where essential elements were not established, was fundamental error, but pointing out that the failure in proof could not have been corrected if the issue had been raised in the trial court.) As to the trial court’s discretion to reopen the case, see K.K. v. State, 717 So.2d 193 (Fla. 5th DCA 1998) and cases cited.

With that clarification, I agree with the majority opinion. 
      
      . A defendant whose trial counsel failed to either move for a judgment of acquittal or failed to identify a specific ground in a motion for judgment of acquittal could allege, after his conviction was affirmed because the error was not preserved, ineffective assistance of counsel. If the state’s failure of proof, however, could have been corrected if it had been called to the state's attention, the ineffective assistance would not have affected the outcome of defendant's case, and post-conviction relief would not be available. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
     