STATE OF FLORIDA, APPELLANT,
v.
ERNIE CLARK, APPELLEE
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Florida appeals the dismissal of a burglary information charging the defendant with unlawfully entering a structure with intent to commit theft. The trial court erred by dismissing the entire information when only the alternative allegation (stealthy entry without consent) should have been struck, leaving a valid burglary charge intact.
The court reversed the dismissal, holding that while the motion to strike the alternative allegation relating to stealthy entry was proper, it was error to dismiss the entire information because the primary allegation of unlawfully entering or remaining in a structure with intent to commit theft constitutes a valid burglary charge under Florida law.
[1] An information charging burglary must allege the specific offense intended to be committed within the structure.
[2] An allegation of stealthy entry without consent may not be a sufficient substitute for alleging the intent to commit a specific crime in a burglary charge.
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Join FLexlaw to unlock all legal intelligence“§ 810.07, Fla.Stat. is not a substantive offense and relates merely to the proof of intent to commit any offense”
Establishes that the stealthy entry allegation does not constitute a separate substantive offense but rather relates to proof of intent
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Join FLexlaw to unlock all legal intelligenceThe defendant was charged by information with two alternative allegations: (1) unlawfully entering or remaining in a structure with intent to commit t…
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THOMPSON, Judge.
The state appeals a final order contending the trial court erred in dismissing an information. We agree, although not for the reasons asserted by the state, and reverse.
The defendant was charged by information with unlawfully entering or remaining in a structure, “with the intent to commit the offense of Theft therein, or [of entering] through a window at about 4:45 A.M. stealthily without the occupant’s consent with intent to commit some offense, contrary to Sections 810.07 and 810.02, Florida Statutes.” This information was drafted in one count with an alternative allegation instead of being drafted in two separate counts. At a pretrial hearing the defendant apparently moved to strike the alternative allegation of stealthy entry without the occupant’s consent with intent to commit some offense therein. Relying on Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981), defendant argued that § 810.07, Fla.Stat. is not a substantive offense and relates merely to the proof of intent to commit any offense. Such an allegation therefore does not meet the requirement that a specific offense be alleged to properly charge the defendant with burglary. In opposition to this motion, the state relied on State v. Fields, 390 So. 2d 128 (Fla. 4th DCA 1980) which by dicta indicated that an allegation relating to stealth and lack of consent is a sufficient substitute for an allegation of intent to commit a specific crime.
The trial judge orally announced at the conclusion of the hearing that he would grant the defendant’s motion to strike the alternative allegation of stealthy entry in its entirety. However, the trial judge’s subsequent written order dismissed the entire information which properly charged the defendant with burglary by unlawfully entering or remaining in a structure, with intent to commit the offense of theft therein. We approve the decision in Rozier and would find no error in striking the alternative language relating to stealthy entry in the information. However, it was error to dismiss the entire information when one alternative allegation properly charged the defendant with burglary.
Reversed and remanded for further proceedings consistent with this opinion.
LARRY G. SMITH, J., concurs.
JOANOS, J., concurs in part and dissents in part.
JOANOS, Judge,
concurring in part and dissenting in part.
I join the majority in their determination that the trial judge erred in dismissing the information.
However, I disagree and dissent from the majority’s approval of Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981). I believe that for the reasons expressed in their opinion, the Fourth District Court of Appeal set forth the correct interpretation of the requirements for pleading burglary in State v. Fields, 390 So. 2d 128, 131 (Fla. 4th DCA 1980) when they wrote:
Therefore, in order to comply with the “general to particular” rule of pleading and yet give force and effect to Section 810.07, we hold that in alleging the crime of burglary, the state must either list the specific crime intended to be committed within the structure, or, alternatively, allege that an offense was intended to be committed therein in that the entry was gained stealthily and without consent of the owner or occupant. By either mode of pleading, the defendant would be sufficiently notified in the accusatory pleading of the crime brought by the state to which he must respond.
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Carlton Barnes v. State, 426 So. 2d 1274 (Fla. 1st DCA 1983)…4th DCA 1981), and Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981). The court took the Waters view and proceeded to trial. Subsequently, this Court adopted the Rozier view, State v. Speights, 417 So. 2d 1168 (Fla. 1st DCA 1982); State v. Clark, 416 So. 2d 13 (Fla. 1st DCA 1982). Consequently, we reverse the burglary conviction and remand for an adjudication of guilt on the only crime actually charged in this count of the information, trespass. Rozier, supra. We note that review of Waters and Speights i…
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Brown v. State, 417 So. 2d 280 (Fla. 1st DCA 1982)…ticular crime. We affirm. Since § 810.07, Fla.Stat., relied upon by the state in drafting the instant information, creates only a prima facie case of intent to commit an offense generally, the instant information was defective. See State v. Clark, 416 So. 2d 13 (Fla. 1st DCA 1982); Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981). Although defective, the information did charge defendant with the unlawful entry of the victim’s home with the intent to commit an unspecified offense therein. By not objectin…
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State v. Speights, 417 So. 2d 1168 (Fla. 1st DCA 1982)…of the burglary statute, section 810.02(3), Florida Statutes. Another panel of this Court has recently concluded that the State must reduce to a specific offense the nature of the offense charged as a part of a burglary information. State v. Clark, 416 So. 2d 13 (Fla. 1st DCA 1982). We adopt this view. Accord Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981). Nevertheless, we recognize that the Fourth District Court of Appeal has indicated a contrary result in dicta. State v. Fields, 390 So. 2d 128 (Fla.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981)
- State v. Fields, 390 So. 2d 128 (Fla. 4th DCA 1980)
- Thompson v. Thompson, 390 So. 2d 128 (Fla. 4th DCA 1980)