THE STATE OF FLORIDA, APPELLANT,
v.
OSCAR RODRIGUEZ, APPELLEE
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Possessing a dangerous weapon during a burglary, even if not used, elevates the charge to armed burglary.
[1] A person "arms himself" within a structure for purposes of armed burglary when he takes possession of a dangerous weapon, even if he does not intend to use it in furthera…
[2] A loaded handgun is considered a dangerous weapon for the purposes of the armed burglary statute.
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Join FLexlaw to unlock all legal intelligenceThe defendant stole a loaded handgun during a burglary and was charged with armed burglary. The trial court dismissed the armed burglary charge, reduc…
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NESBITT, Judge.
While committing a burglary, the defendant stole a loaded handgun. He was informed against for armed burglary of a structure which is prohibited by Section 810.02(2)(b), Florida Statutes (1979). The defendant filed an amended sworn motion to dismiss the information as authorized by Florida Rule of Criminal Procedure 3.190(c)(4). The defendant’s motion admitted the circumstances surrounding his acquisition of the handgun. The state demurred as permitted by Florida Rule of Criminal Procedure 3.190(d), the effect of which was to place in issue the legal sufficiency of the accusatory pleading. Haddock v. State, 141 Fla. 132, 192 So. 802 (1939); O’Brien v. State, 55 Fla. 146, 47 So. 11 (1908). The trial court granted the defendant’s amended sworn motion to dismiss, which therefore reduced the offense charged from armed burglary to burglary.
Section 810.02(2)(b), Florida Statutes (1979) converts a simple burglary into an armed burglary by the following terms:
Is armed, or arms himself within such structure, with explosives or a dangerous weapon.
In the same language, Section 810.02(3), Florida Statutes (1979) authorizes an increased penalty where the burglar is armed. The fact that the defendant does not actually employ the weapon is not the gravamen of this enhanced offense. We agree with State v. Dopson, 323 So. 2d 644 (Fla.4th DCA 1975) where Judge Downey stated:
There is nothing ambiguous about the language of either section of the statute nor do we find any support for the alleged requirement that the state must show the person charged intended or was willing to use such weapon in the furtherance of the crime being committed. A loaded pistol is a dangerous weapon and to take possession thereof is to arm oneself.
323 So. 2d at 645. Accord, Fowler v. State, 375 So. 2d 879 (Fla.2d DCA 1979).
For the foregoing reasons, as well as the defendant’s confession of error, the order appealed from is reversed with directions to reinstate the information charging the defendant with the offense of armed burglary-
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Hardee v. State, 534 So. 2d 706 (Fla. 1988)…tated whether the gun was loaded when it was stolen, but subsequent opin [*708] ions have held that the theft of a loaded gun while committing a burglary suffices to enhance the crime to armed burglary under section 810.02(2)(b). State v. Rodriguez, 402 So. 2d 86 (Fla. 3d DCA 1981); State v. Dobson, 323 So. 2d 644 (Fla. 4th DCA 1975). Other cases have held that even where a burglar steals an unloaded gun, he may be convicted of enhanced burglary if he later loads the gun or is shown to have the bullets in hi…
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Bunkley v. State, 882 So. 2d 890 (Fla. 2004)…weapon in the furtherance of the crime being committed.” Bunkley's counsel objected to this additional instruction solely on the ground that the standard jury instructions were adequate. The court overruled the objection based on State v. Rodriguez, 402 So. 2d 86, 86 (Fla. 3d DCA 1981) (holding that the burglary statute authorizes an increased penalty where the burglar is armed, and the fact that the defendant does not actually use the [*892] weapon is "not the gravamen of this" enhanced offense”). Bunkley o…
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In re STANDARD JURY INSTRUCTIONS IN CRIM. CASES-REPORT 2018-05., 257 So. 3d 925 (Fla. 2018)…n application of heat, flame, or shock, including but not limited to dynamite, nitroglycerin, trinitrotoluene, or ammonium nitrate when combined with other ingredients to form an explosive mixture, blasting caps, and detonators. State v. Rodriguez, 402 So. 2d 86 (Fla. 3d DCA 1981). A "dangerous weapon" is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm. It [*933] is not necessary for the State to prove that the defendant intended to use o…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Haddock v. State, 141 Fla. 132 (Fla. 1939)
- O'Brien v. State, 55 Fla. 146 (Fla. 1908)
- Fowler v. State, 375 So. 2d 879 (Fla. 2d DCA 1979)
- State v. Dopson, 323 So. 2d 644 (Fla. 4th DCA 1975)