STATE OF FLORIDA, APPELLANT,
v.
MICHAEL JOSEPH HANKINS, APPELLEE
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Florida appeals from dismissal of a burglary of a conveyance charge based on the defendant's removal of hubcaps from an automobile. The court holds that removing hubcaps from a vehicle does not constitute burglary because the offense fails to establish the essential element of intent to commit a crime within the conveyance.
The removal of hubcaps does not constitute burglary of a conveyance. While the statutory definition of 'entering a conveyance' includes taking apart any portion thereof, burglary requires entry or remaining in a conveyance with intent to commit an offense therein, and the offense must be one capable of being committed within the vehicle. The theft of hubcaps wholly fails to establish the requisite intent element.
[1] Burglary of a conveyance requires an intent to commit an offense within the conveyance.
[2] The simple removal of hubcaps from an automobile does not, by itself, establish a prima facie case of burglary of a conveyance.
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Join FLexlaw to unlock all legal intelligence“entering or remaining in a structure or conveyance with the intent to commit an offense therein”
The statutory definition of burglary requiring proof of intent to commit an offense within the conveyance
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Join FLexlaw to unlock all legal intelligenceThe appellee was observed removing hubcaps from an automobile. The state charged him with burglary of a conveyance based on the statutory definition t…
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McDONALD, PARKER LEE, Associate Judge.
The State appeals from an Order of Dismissal of a count of burglary of a conveyance.
The charge arose as a result of Appellee having been seen removing hubcaps from an automobile. Thus, the question posed is whether or not the simple removal of hubcaps constitutes burglary of a conveyance. The State contends that it does, by virtue of a portion of the definition found in Florida Statute 810.011(2) which reads:
“Conveyance” means any . . . road car, . . ., and “to enter a conveyance” includes taking apart any portion of the conveyance.
We quote with approval the response to the State’s position by counsel for Appellee.
The weakness in the State’s argument is its failure to incorporate the definition of entering a conveyance into the remainder of the burglary statute. Burglary is defined in Section 810.02(1), Florida Statutes, as:
entering or remaining in a structure or conveyance with the intent to commit an offense therein, . (emphasis supplied).
Thus, essential to a prima facie case of burglary is the allegation of facts in support of defendant’s intent to commit an offense within the structure or conveyance.
In State v. Dalby, 361 So. 2d 215 (Fla. 2d DCA 1978), the court stated that “. . . the word ‘therein’ requires that the offense must be capable of being committed within the vehicle . . .” Dalby, supra (emphasis supplied). Clearly, the theft of the hubcaps from an automobile wholly fails to establish a pri-ma facie case of intent “to commit an offense therein”, within the meaning of Section 810.02(1), Florida Statutes. As the Court stated in Porter v. State, 341 So. 2d 1017, 1019 (Fla. 2d DCA 1977) [cert. denied, 352 So. 2d 173 (Fla.1977)]:
“The state must prove intent to commit a felony, and in the absence of other evidence or circumstances bearing on the defendant’s intent, the best evidence of that intent is what he did steal. Platt v. State, 291 So. 2d 96 (Fla. 2d DCA 1974) (footnote omitted).”
See also Mack v. State, 324 So. 2d 642, 643 (Fla. 4th DCA 1976).
The gravamen of the offense of burglary, whether of a conveyance or otherwise, is a nonconsensual entry with the intent to commit an offense within; the purpose of the statute is to punish an invasion of the possessory property rights of another in structures and conveyances. Presley v. State, 61 Fla. 46, 48, 54 So. 367, 368 (1911); Holzapfel v. State, 120 So. 2d 195, 197 (Fla. 3rd DCA 1960) [cert. denied, State v. Holzapfel, 125 So. 2d 877 (Fla.1960)]; Vazquez v. State, 350 So. 2d 1094 (Fla. 3rd DCA 1977) [cert. denied, State v. Vazquez, 360 So. 2d 1250 (Fla.1978)]. The definition of “entering a conveyance” in Section 810.011(2) does not obviate the necessity for alleging facts in support of an intent to commit an offense therein. Dalby, supra.
The facts of this case are distinguishable from those of Bragg v. State, 371 So. 2d 1082 (Fla. 4th DCA 1979). In Bragg the defendant opened the hood of a car and removed a battery. This was properly held to be an entering. In the case at bar there was no entering.
AFFIRMED.
CROSS, C. J., and DAUKSCH, J., concur.
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Cited By (14 total)
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State v. Stephens, 601 So. 2d 1195 (Fla. 1992)…e agree with the reasoning of the dissent below. It is irrelevant that the criminal act involved events beyond the interior of the vehicle, e.g., the act of stealing the car itself and driving way. The district court’s reliance on State v. Hankins, 376 So. 2d 285 (Fla. 5th DCA 1979), is misplaced. The Hankins court was addressing the question of whether a burglary of a conveyance occurs simply by stealing a vehicle’s hubcaps. Obviously, there was no “entering or remaining in” the conveyance in that instance.…
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Drew v. State, 773 So. 2d 46 (Fla. 2000)…ANSTEAD, J. We have for review Drew v. State, 736 So. 2d 1188 (Fla. 2d DCA 1999), based on certified direct conflict with the decision in State v. Hankins, 376 So. 2d 285 (Fla. 5th DCA 1979). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. At issue in this case is whether the act of removing hubcaps or tires from a vehicle in and of itself constitutes a burglary. The Second District in Drew (tires) and State…
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Stanley v. State, 626 So. 2d 1004 (Fla. 2d DCA 1993)…n his pants. Nothing was missing from Jeffcoat, [*1005] and there was no damage except for the hole in the wall. In order to prove the burglary, the state must prove a nonconsensual entry with intent to commit an offense therein. State v. Hankins, 376 So. 2d 285 (Fla. 5th DCA 1979). The entry must be made by some part of the body or an instrument used not only for the breaking but for the purpose of committing the felony. Foster v. State, 220 So. 2d 406 (Fla. 3d DCA), cert. denied, 225 So. 2d 913 (Fla.1969)…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Presley v. State, 61 Fla. 46 (Fla. 1911)
- Holzapfel v. State, 120 So. 2d 195 (Fla. 3d DCA 1960)
- Platt v. State, 291 So. 2d 96 (Fla. 2d DCA 1974)
- Vazquez v. State, 350 So. 2d 1094 (Fla. 3d DCA 1977)
- State v. Dalby, 361 So. 2d 215 (Fla. 2d DCA 1978)
- Bragg v. State, 371 So. 2d 1082 (Fla. 4th DCA 1979)
- Farrell v. State, 125 So. 2d 877 (Fla. 1960)
- Schneble v. State, 125 So. 2d 877 (Fla. 1960)
- Porter v. State, 341 So. 2d 1017 (Fla. 2d DCA 1977)
- Schwab v. Schwab, 324 So. 2d 642 (Fla. 4th DCA 1976)