County Criminal Court: CRIMINAL LAW –Evidence – Evidence sufficient to support a denial of a JOA. Judgment and sentence affirmed. Soler v. State, No. CRC 05-26 APANO, (Fla. 6th Cir.App.Ct. November 17, 2006).








v.                                                                                                                                                                   Appeal No. CRC 05-26 APANO







Opinion filed _________________.


Appeal from a conviction and sentence

entered by the Pinellas County Court

County Judge Sonny Im


Heather Gray, Esq.

Attorney for appellant


C. Marie King, Esq.

Assistant State Attorney



            THIS MATTER is before the Court on the appellant, Juan Soler’s, appeal from a judgment and sentence entered against him following his conviction for petty theft.

After reviewing the briefs and record, this Court affirms the conviction and sentence.

            A gas station clerk called the police because the defendant had pumped gas but not paid for it. When the police arrived, the defendant told them that he was about to run out of gas and pulled into the gas station. He then realized he did not have his wallet, but found some change in his console --- sufficient to pump a very little gas in his car. He claims to have placed the change on the counter. The clerk testified that there was no change on the counter, and that the defendant was walking around the store purchasing items. He was opening packages and mixing items together. When he arrived at the counter, his items totaled approximately $90. He then told the clerk that he had no money with which to pay. The clerk put the items in a bag and voided the sale, she then asked him to pay for the gas that he pumped. The defendant then told her that he had previously put change on the counter sufficient to pay for the gas that he had previously pumped. The clerk testified that the defendant was giving evasive answers regarding the payment for the gas, switched subjects, and tried to compliment her, which she perceived as attempts to con her. The defendant was charged with petty theft, and convicted following a non-jury trial. He is appealing the judgment and sentence.    

            The defendant argues that the motion for Judgment of Acquittal (“JOA”) should have been granted. The record, however, reveals that no motion for JOA was ever made. The trial court can hardly be faulted for not granting a motion that was never made.

            Even if trial counsel had made a motion for JOA, it would have had no merit. Although the defendant claims the evidence against him was only circumstantial, a review of the record shows that there was direct evidence of the defendant’s guilt. The defendant admitted pumping the gas, and the store clerk testified that he did not pay for it.

Finally, even if the evidence against the defendant were only circumstantial, the State presented sufficient evidence to withstand any JOA. Review of a motion for a JOA in a case that only has circumstantial evidence is governed by a special rule. The trial judge must review the evidence to determine if there is competent evidence from which the jury could infer guilt to the exclusion of all other inferences. The evidence must be viewed in a light most favorable to the State, and the State is not required to rebut conclusively every possible variation. The State only needs to introduce evidence that is inconsistent with the defendant’s theory of events. State v. Law, 559 So.2d 187 (Fla. 1989). In the case at bar, the State presented evidence that was inconsistent with the defendant’s theory of events. The store clerk testified that there was never any change placed on the counter. In addition, the clerk testified that the defendant was shopping in the store and trying to con her with his actions. This was inconsistent with the defendant’s testimony that he forgot his wallet, but had found a little change in his car sufficient to buy a little gas. It was for the trier of fact to either accept or reject the defendant’s version of events.

In summary, no JOA, even if asked for by defense counsel, should have been granted. There was sufficient evidence to support the conviction. Accordingly, the conviction  and sentence must be affirmed.

            IT IS THEREFORE ORDERED that the conviction and sentence is affirmed.

DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this ____ day of November, 2006.


                                                                                    J. Thomas McGrady

                                                                                    Circuit Judge




                                                                                    R. Timothy Peters

                                                                                    Circuit Judge




                                                                                    John A. Schaefer

                                                                                    Circuit Judge


cc:        Heather Gray, Esq.

            State Attorney