DALE GENE FRAME, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frame was convicted of possession of burglary tools, grand theft of a firearm, and dealing in stolen property after the trial court denied his motions to suppress the seized items. The appellate court reversed the convictions for burglary tools and grand theft of firearm due to insufficient evidence of their unlawful nature, but affirmed the conviction for dealing in stolen property.
The court reversed the convictions for possession of burglary tools and grand theft of firearm because the state failed to prove the items were used or attempted to be used as burglary tools and failed to show the seizing officers knew Frame was a felon. The court affirmed the conviction for dealing in stolen property because the stipulation regarding probable cause to believe the items were stolen was valid.
[1] Possession of items that are innocent per se requires proof of their use or attempted use as burglary tools to establish probable cause for their seizure.
[2] Firearms are not contraband per se.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the state presented no evidence that these were not "innocent items" and, therefore, it had to show not only possession, but use or attempted use of them as burglary tools”
Establishes the burden of proof required when allegedly innocent items are charged as burglary tools
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePolice seized a slide hammer, bolt cutters, a firearm, and Klaus tools from Frame. The state charged Frame with possession of burglary tools, grand th…
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SCHEB, Chief Judge.
The state charged Dale Gene Frame with possession of burglary tools, grand theft of a firearm, and dealing in stolen property, specifically some Klaus tools, among other offenses. Frame moved to suppress the alleged burglary tools, the firearm, and the Klaus tools. When the trial court denied his motions, Frame pled nolo contendere in each case reserving his right to appeal. The court adjudicated Frame guilty and sentenced him to two years on each charge to be served consecutively. Frame appeals contending that the court erred in denying his motions to suppress.
The alleged burglary tools were a slide hammer and bolt cutters. The state presented no evidence that these were not “innocent items” and, therefore, it had to show not only possession, but use or attempted use of them as burglary tools. Preston v. State, 373 So. 2d 451 (Fla.2d DCA 1979); see State v. Thomas, 362 So. 2d 1348 (Fla.1978). The state, however, failed to demonstrate this. Consequently, the trial court erred in denying Frame’s motion to suppress the tools.
The trial judge refused to suppress the firearm on the ground that firearms are contraband per se. The trial judge was incorrect, however, since firearms are not contraband per se. Porter v. State, 363 So. 2d 41 (Fla.2d DCA 1978). The state now attempts to sustain the denial of Frame’s motion because Frame was a felon possessing a firearm in violation of section 790.23, Florida Statutes (1979). Nevertheless, the state introduced no evidence showing that the officers who seized the firearm knew that Frame was a felon. Consequently, the trial court erred in denying Frame’s motion to suppress the firearm.
Finally, Frame contends that the trial court should have suppressed the Klaus tools. Since the state had charged Frame with dealing in stolen property, it had to establish that the police who seized the tools had probable cause to believe that they were stolen. Ludwig v. State, 215 So. 2d 898 (Fla.3d DCA 1968), cert. denied, 396 U.S. 927, 90 S.Ct. 261, 24 L.Ed.2d 225 (1970). At the hearing on the motion to suppress the tools, Frame’s counsel stipulated that the proof as to the tools would be the same as that presented in an earlier hearing on Frame’s motions to suppress other items seized when the tools were seized. That evidence indicated that the officers had probable cause to believe the other items were stolen. In view of the stipulation, the trial court properly denied Frame’s motion to suppress the tools.
We find no merit to the other points Frame raises.
Accordingly, we vacate the sentence and convictions for possession of burglary tools and grand theft of a firearm; otherwise, we affirm. We remand for further proceedings consistent with this opinion.
GRIMES and OTT, JJ., concur.
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Thomas v. State, 531 So. 2d 708 (Fla. 1988)…tion drawn in Foster. E.g., State v. Thomas, 362 So. 2d 1348 (Fla.1978); K.W.; James v. State, 452 So. 2d 1048 (Fla. 2d DCA 1984); Hubbell v. State, 446 So. 2d 175 (Fla. 5th DCA), petition for review denied, 453 So. 2d 44 (Fla.1984); Frame v. State, 388 So. 2d 1381 (Fla. 2d DCA), dismissed, 394 So. 2d 1152 (Fla.1980); Preston; Crosby v. State, 352 So. 2d 1247 (Fla. 2d DCA 1977). However, we find that this distinction has injected unnecessary confusion into the legal issues at hand. It requires the trial court…1 / 2
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K.W. v. State, 468 So. 2d 368 (Fla. 2d DCA 1985)…ary or attempted burglary to establish the requisite criminal intent. See also James v. State, 452 So. 2d 1048 (Fla. 2d DCA 1984); Hubbell v. State, 446 So. 2d 175 (Fla. 5th DCA), petition for review denied, 453 So. 2d 44 (Fla.1984); Frame v. State, 388 So. 2d 1381 (Fla. 2d DCA), appeal dismissed, 394 So. 2d 1152 (Fla.1980); Crosby v. State, 352 So. 2d 1247 (Fla. 2d DCA 1977). Here, as in Frame, the state presented no evidence that the items were not “innocent items.” Moreover, as in Preston and Crosby, the te…
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James v. State, 452 So. 2d 1048 (Fla. 2d DCA 1984)…) (when alleged burglary too, is a common household item or an implement of ordinary and everyday use, state must present evidence of item’s actual use in burglary or attempted burglary to establish requisite criminal intent.) Accord Frame v. State, 388 So. 2d 1381 (Fla. 2d DCA 1980) (slide hammer and bolt cutters were innocent items which would not support finding of guilt absent evidence of use in burglary or attempted burglary). The record before us contains no evidence that appellant used the bolt cutters…
Authorities Cited
- Colletti v. Illinois, 396 U.S. 927 (U.S. 1969)
- State v. Thomas, 362 So. 2d 1348 (Fla. 1978)
- Bernie Ludwig v. State, 215 So. 2d 898 (Fla. 3d DCA 1968)
- Stewart v. State, 215 So. 2d 898 (Fla. 1st DCA 1968)
- Porter v. State, 363 So. 2d 41 (Fla. 2d DCA 1978)
- Dogan Inanc, M.D. v. Schreckengost, 373 So. 2d 451 (Fla. 2d DCA 1979)
- Preston v. State, 373 So. 2d 451 (Fla. 2d DCA 1979)