L.S., A JUVENILE, PETITIONER
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court resolved a conflict between appellate districts on whether prosecutors can use a presumption of intent statute to prove burglary when the charging document specifies the particular offense intended. The Court held that the state may rely on the statutory presumption even when a specific offense is alleged, treating the specification as surplusage.
The state may rely on the presumption of intent statute to prove the essential element of intent even when the charging document specifies the particular offense intended. The specification of a particular offense in the charging document is surplusage and need not be proven; the state need only prove the essential element of intent to commit an offense.
[1] A burglary prosecution may utilize the statutory presumption of intent, even when the charging document specifies the offense the defendant intended to commit.
[2] Alleging a specific intent to commit an offense in a burglary charge is surplusage and does not preclude the state from relying on the statutory presumption of intent.
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Join FLexlaw to unlock all legal intelligence“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”
Establishes the statutory presumption that allows the state to prove intent from proof of stealthy entry without consent.
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Join FLexlaw to unlock all legal intelligenceL.S., a juvenile, was charged with burglary for unlawfully entering a structure with intent to commit theft. At trial, the state proved the element of…
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ADKINS, Justice.
Petitioner, a juvenile, seeks our review of the following question:
Whether the state may attempt to establish the element of intent in a burglary prosecution by use of the presumption of intent statute, section 810.07, Florida 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 of Appeal.
On June 15, 1983, the state filed a petition for delinquency charging petitioner, in part, with burglary in violation of section 810.02, Florida Statutes (1983). The burglary count was 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.
At trial, the state successfully relied on the presumption of intent statute, section 810.-07, Florida Statutes (1983), to prove the essential element of intent necessary to obtain petitioner’s conviction for burglary. Section 810.07 provides:
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.
On appeal, the Third District affirmed. Petitioner argued there, as here, that by charging an intention to commit a specified offense, the state could not hereafter rely on the presumption of intent statute for proof of intent to commit “an offense”; rather, the state must prove that the defendant did intend to commit the specified offense and must do so without the benefit of section 810.07. See Bennett v. State, 438 So. 2d at 1035. In rejecting that argument, the Third District said that where the offense is so specified,
[W]e 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.
446 So. 2d at 1149-50.
We agree. Our decision in State v. Waters, 436 So. 2d 66 (Fla.1983), clearly states that an indictment or information charging burglary need not specify the offense which the defendant is alleged to have committed, although it must allege an intention to commit an offense. Thus, the exact nature of the offense alleged is, as indicated by the lower court, surplusage so long as the essential element of intent to commit an offense is alleged.
We are not persuaded to follow the reasoning of the Second District in Bennett v. State. Therefore, that decision is disapproved insofar as it is inconsistent with the views expressed herein.
The decision of the third district is approved.
It is so ordered.
BOYD, C.J., and OVERTON, ALDERMAN, McDonald, EHRLICH and SHAW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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Toole v. State, 472 So. 2d 1174 (Fla. 1985)…o commit a specific offense after the breaking and entering occurs, then the state must prove that the defendant did in fact intend to commit this offense.” 456 So. 2d at 1269 (quoting Bennett, 438 So. 2d at 1035). We recently held in L.S. v. State, 464 So. 2d 1195 (Fla.1985) that the exact nature of the offense alleged is surplusage so long as the essential element of intent to commit an offense is alleged and subsequently proven. Id. at 1196. In L.S., we said that the state may rely on section 810.07, Florid…
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Owen v. State, 515 So. 2d 263 (Fla. 4th DCA 1987)…PER CURIAM. Affirmed on the authority of L.S. v. State, 464 So. 2d 1195 (Fla.1985). ANSTEAD, LETTS and GUNTHER, JJ., concur.…
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Graham v. State, 472 So. 2d 464 (Fla. 1985)…to commit an offense, though it need not specify that offense. In a prosecution for burglary, the state may rely on section [*466] 810.07 as prima facie evidence of intent to commit an offense, whether or not the offense is specified. L.S. v. State, 464 So. 2d 1195 (Fla.1985); Frederick v. State, 472 So. 2d 463 (Fla.1985). Where, however, the prosecution is for attempted burglary, the state is precluded from reliance on section 810.07 by the express terms of the statute, even where there is some evidence of un…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Waters, 436 So. 2d 66 (Fla. 1983)
- Bennett v. State, 438 So. 2d 1034 (Fla. 2d DCA 1983)
- L.S. v. State, 446 So. 2d 1148 (Fla. 3d DCA 1984)