L.S., A JUVENILE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A juvenile was adjudicated delinquent for burglary and theft. The court reversed the theft conviction due to insufficient evidence but affirmed the burglary conviction, holding that when burglary is charged with intent to commit a specific offense, the state may still rely on the statutory presumption of intent under Florida Statute § 810.07 without proving the specific intent charged.
The court held that when burglary is charged with intent to commit a specific offense, the charging document's specification of that offense is surplusage and the state may avail itself of the § 810.07 presumption of intent based on proof of entry, stealth, and lack of consent. The court affirmed the burglary conviction because the fingerprint evidence, combined with the victim's testimony that she cleaned the sill between burglaries, was sufficient to support the conviction.
[1] A conviction for theft will be reversed when the evidence is insufficient to support it.
[2] Proof of entry, stealth, and lack of consent is prima facie evidence of intent to commit an offense in a burglary trial.
Previewing 2 of 6 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“If the state were precluded from using the presumption by virtue of charging the intent to commit a specific offense, there would be no incentive for the state to ever enumerate the particular offense.”
Establishes the court's rationale for allowing the state to rely on the statutory presumption of intent even when a specific offense is charged.
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Join FLexlaw to unlock all legal intelligenceThe juvenile was charged with theft and burglary for breaking into a victim's home. Six fingerprints were lifted from the window sill used for entry; …
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NESBITT, Judge.
In a petition for delinquency, the juvenile was charged with theft, in violation of section 812.014, Florida Statutes (1981) and burglary, in violation of section 810.02, Florida Statutes (1981). He was adjudicated delinquent on both counts. The state has conceded that the evidence was insufficient to support the theft conviction and accordingly we reverse on that count. As to the burglary, we affirm.
The record reflects that there were six fingerprints lifted from the window sill of the window used to gain entrance to the victim’s home. Two of these prints matched the juvenile’s fingerprints. Although the house had also been broken into one week earlier, the victim stated that the window sill had been dusted and cleaned between the time of the two illegal entries.
As to the burglary count, the information charged as follows:
This child ... did unlawfully enter or remain in a certain structure ... with the intent to commit an offense therein, to wit: THEFT in violation of 810.02, Florida Statutes (emphasis supplied)
L.S. argues that having charged him with the specific intent to commit theft, the state was required to prove that he had that specific intent. However, he contends that the state not only failed to prove this specific intent, but it failed to prove intent at all, erroneously relying on proof of the presumption of intent as provided in section 810.07, Florida Statutes (1981).1 In support of his position, the juvenile directs our attention to State v. Waters, 436 So. 2d 66 (Fla.1983). Waters held that the information need not identify the specific offense which the defendant intended to commit once inside the structure. It then addressed the issue of whether proof of the factual elements set out in section 810.07 would be sufficient to establish a prima facie case of intent to commit an offense and concluded:
Looking at the plain language of the statute, we can see that it sets out three factual elements: entry, stealth, and lack of consent. If proved, the statute provides, the facts thus shown “shall be prima facie evidence of entering with intent to commit an offense.” That is, proof of the three elements will always be deemed to be a sufficient showing to allow a case of burglary to go to the jury even if there is no evidence of the defendant’s state of mind at the time of the unlawful entering, and will be legally sufficient proof of intent to support a verdict.
Waters, 436 So. 2d at 70.
The supreme court did not address the precise question before us; however, insofar as it held that specification of the offense intended is not essential, we find that its inclusion in the charging document is surplusage and need not be proven.. If the state were precluded from using the presumption by virtue of charging the intent to commit a specific offense, there would be no incentive for the state to ever enumerate the particular offense. We hold, therefore, that when the state charges that the defendant did intend to commit a specific offense after the breaking and entering, it may avail itself of section 810.07. We disagree with our sister court in Bennett v. State, 438 So. 2d 1034 (Fla. 2d DCA 1983) to the extent that it holds otherwise.
The juvenile’s second point on appeal is that there was insufficient evidence to support an adjudication for burglary. The evidence revealed that the fingerprints, which were the sole evidence linking L.S. to the crime, were inside the bedroom window sill, a place not accessible to the general public. While this fact, standing alone, would be legally sufficient to support the conviction, Sorey v. State, 419 So. 2d 810 (Fla. 3d DCA 1982), the juvenile argues that the state failed to show that the fingerprints could not have been made during the prior burglary. We conclude that the victim’s testimony that she cleaned the sill between the time of the two burglaries negates the juvenile’s suggestion that the prints were made by the juvenile at some earlier time. Summerson v. State, 200 So. 2d 594 (Fla. 3d DCA 1967). See also Sorey.
Affirmed in part, reversed in part.
. Section 810.07 provides:
Prima facie evidence of intent. — In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense.
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L.S. v. State, 464 So. 2d 1195 (Fla. 1985)…orida Statutes, where the charging document alleged that the defendant entered with the intent to commit a specified offense. The Third District Court of Appeal answered in the affirmative and upheld petitioner’s burglary conviction. L.S. v. State, 446 So. 2d 1148 (Fla. 3d DCA 1984). That decision expressly and directly conflicts with the opinion in Bennett v. State, 438 So. 2d 1034 (Fla. 2d DCA 1983). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve of the decision of the Third District Court…
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Jones v. State, 465 So. 2d 566 (Fla. 3d DCA 1985)…ndisputed issue, even if erroneous, does not require reversal where there is no suggestion that the jury was misled. The remaining issue raised by defendant has been decided adversely to him in L.S. v. State, 464 So. 2d 1195 (Fla.1985), approving, 446 So. 2d 1148 (Fla. 3d DCA 1984). Affirmed.…
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T.L.J. v. State, 449 So. 2d 1008 (Fla. 2d DCA 1984)…when he entered the house trailer. Since the state charged appellant with intending to commit a specific offense, it may not rely upon the presumption afforded by section 810.07, Florida Statutes (1981). Our decision conflicts with L.S. v. State, 446 So. 2d 1148 (Fla. 3d DCA 1984), in which the court said: If the state were precluded from using the presumption by virtue of charging the intent to commit a specific offense, there would bé no incentive for the state to ever enumerate the particular offense.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Waters, 436 So. 2d 66 (Fla. 1983)
- Sorey v. State, 419 So. 2d 810 (Fla. 3d DCA 1982)
- Summerson v. State, 200 So. 2d 594 (Fla. 3d DCA 1967)
- Bennett v. State, 438 So. 2d 1034 (Fla. 2d DCA 1983)