MICHAEL KRATHY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Krathy was convicted of burglary after being observed attempting to climb through a window of a home. The appellate court reversed the conviction because the State failed to prove the essential element of intent to commit theft beyond a reasonable doubt, and remanded for entry of judgment on the lesser offense of trespass.
The State failed to prove the intent element of burglary beyond a reasonable doubt. Because the burglary charge was reversed on insufficiency grounds, double jeopardy principles preclude further prosecution for burglary, but the evidence supports conviction for the lesser included offense of trespass of an occupied structure.
[1] Proof of breaking and entering alone is insufficient to infer intent to commit a specific offense.
[2] When a burglary charge alleges intent to commit a specific offense, the state must prove that specific intent.
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Join FLexlaw to unlock all legal intelligence“In a prosecution for burglary, the State is required to prove beyond a reasonable doubt that the defendant intended to commit an offense, and this proof must be established in addition to and apart from the proof of unlawful entry.”
Establishes the essential legal requirement that intent is a separate element that must be proven independently of entry
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Join FLexlaw to unlock all legal intelligenceKrathy was observed by a homeowner attempting to climb through a window after she heard breaking glass. Upon seeing the homeowner, Krathy immediately …
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SHIVERS, Judge.
Krathy appeals his conviction on a charge of burglary, arguing, among other things, that the evidence was insufficient to withstand his motion for judgment of acquittal. We must agree that the State failed to prove a burglary as alleged in the information filed against Krathy, so we reverse the judgment and sentence.
The information charged that Krathy “did unlawfully enter or remain in a structure, to-wit: a dwelling ... with the intent to commit an offense therein, to-wit: theft, in violation of Section 810.02, Florida Statutes.” At trial, the State’s primary witness testified that after hearing the sound of breaking glass in a back room of her home, she walked to the doorway where she observed Krathy attempting to climb in through a window. Upon seeing her, he immediately backed out and fled.
In a prosecution for burglary, the State is required to prove beyond a reasonable doubt that the defendant intended to commit an offense, and this proof must be established in addition to and apart from the proof of unlawful entry. Simpson v. State, 81 Fla. 292, 87 So. 920 (1921); Griffin v. State, 276 So. 2d 842 (Fla.4th DCA 1973). Here the State offered no proof of intent to commit theft.
This case is unaffected by the “presumption statute,” Section 810.07, which creates a prima facie inference of intent to commit an offense upon proof of a stealthy, non-consensual entry. The State cannot rely on that presumption because it did not plead it in the information. Waters v. State, 401 So. 2d 1131 (Fla. 4th DCA 1981) [1981 F.L.W. 1665]. Instead, the State chose to allege an intent to commit theft. Due process requires that the State prove what it alleges.
Because we must reverse the judgment and conviction on the basis of insufficient evidence, further prosecution on a charge of burglary would be prohibited by Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). See also Tibbs v. State, 397 So. 2d 1120 (Fla.1981). However, Krathy has requested that this court, upon reversal, direct the trial court to enter judgment and sentence on the offense of trespass, and we note that the evidence would support a conviction for trespass of an occupied structure, Section 810.08(2)(b).
Accordingly, the conviction is reversed and this cause is remanded to the trial court for entry of judgment and sentence consistent with this opinion.
McCORD, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Ellis v. State, 425 So. 2d 201 (Fla. 5th DCA 1983)…, 390 So. 2d 128 (Fla. 4th DCA 1980), that the allegations of “a stealthy, non-consensual entry” are an allegational alternative to the “general to particular” rule. Similarly, in Van Teamer we declined to follow the rule adopted in Krathy v. State, 406 So. 2d 53 (Fla. 1st DCA 1981), and Waters v. State, 401 So. 2d 1131 (Fla. 4th DCA 1981), that the State could not use the statutory “stealthy non-consensual entry” evidentiary presumption as proof of facts sufficient to raise the presumption and create a prim…
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B. D. v. State, 412 So. 2d 70 (Fla. 1st DCA 1982)…the county jail. Sections 810.-08(2)(b) and 775.082, Florida Statutes. Therefore, upon remand, the order of commitment shall be amended accordingly. AFFIRMED in part, REVERSED in part, and REMANDED. MILLS and SHAW, JJ., concur. . Krathy v. State, 406 So. 2d 53 (Fla. 1st DCA 1981); Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981); and Waters v. State, 401 So. 2d 1131 (Fla. 4th DCA 1981). . Section 39.01(8).…
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Baker v. State, 622 So. 2d 1333 (Fla. 1st DCA 1993)…ense other than that of trespass, meaning the state must establish facts in addition to and apart from unlawful entry; otherwise, the offense would constitute only trespass, as proscribed by Section 810.08(1), Florida Statutes.2 See Krathy v. State, 406 So. 2d 53 (Fla. 1st DCA 1981); Rozier v. State, 402 So. 2d 539, 540-41 (Fla. 5th DCA 1981), approved, 436 So. 2d 73 (Fla.1983). This construction of the burglary statute is consistent with the common law rule recognizing that the criminal intent to steal or t…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Delbert Lee Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)
- Greene v. Massey, 437 U.S. 19 (U.S. 1978)
- Simpson v. State, 81 Fla. 292 (Fla. 1921)
- Waters v. State, 401 So. 2d 1131 (Fla. 4th DCA 1981)
- Griffin v. State, 276 So. 2d 842 (Fla. 4th DCA 1973)