K.W., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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K.W., a juvenile, was found delinquent for possessing burglary tools under Florida Statute § 810.06 based solely on an officer's discovery of a knife, wire cutters, and change during a frisk. The court reversed because the state failed to present evidence of the items' actual or intended use in burglary, which is required when the items are ordinary household tools.
The conviction must be reversed because for ordinary household tools or tools of everyday use, the state must present evidence of actual use in burglary or attempted burglary to establish the requisite criminal intent. Here, the state presented no such evidence.
[1] Possession of tools that are not contraband per se requires evidence of criminal intent or actual use in burglary or attempted burglary to establish a violation of the st…
[2] The state must present evidence of a tool's actual use in burglary or attempted burglary to establish the requisite criminal intent when the tool is not contraband per se…
Previewing 2 of 3 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“The only evidence offered against K.W. at the adjudicatory hearing was the testimony of Deputy William Nelson of the Hillsborough County Sheriffs Office.”
Establishes that the conviction rested solely on the officer's testimony without corroborating evidence of criminal intent.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn April 15, 1984, Deputy Nelson observed K.W. at a shopping center in the early morning hours 'messing around' with a bank teller machine and looking…
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SCHEB, Judge.
K.W., a juvenile, challenges the trial court’s order finding him guilty of the offense of possessing burglary tools and placing him on community control.
K.W. was charged with being delinquent for having violated section 810.06, Florida Statutes (1983), which provides:
Whoever has in his possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree
The only evidence offered against K.W. at the adjudicatory hearing was the testimony of Deputy William Nelson of the Hillsborough County Sheriffs Office. Deputy Nelson observed K.W. in the early hours of April 15, 1984, “messing around” with an automatic bank teller machine and looking through garbage cans at a shopping center. The officer sent the juvenile home, but as he walked away, Deputy Nelson observed an object protruding from his pocket. He then stopped and frisked K.W. The frisk yielded a knife, a pair of wire cutters, and a bag of change. The deputy then cheeked the area but found the bank machine showed no signs of any attempted entry and that no machines or businesses in the area had been burglarized.
On the basis of Deputy Nelson’s testimony, the trial judge found K.W. to be delinquent for having violated section 810.06. The court withheld adjudication and placed him on community control.
The items found on K.W. are household tools or tools of everyday use. Since they are not contraband per se, it is only the possession of such implements along with a criminal intent or usage that constitutes a punishable offense. As we noted in Preston v. State, 373 So. 2d 451 (Fla. 2d DCA 1979), cert. denied, 383 So. 2d 1203 (Fla.1980), in such instances it is necessary for the state to present evidence of an item’s actual use in burglary or attempted burglary to establish the requisite criminal intent. See also James v. State, 452 So. 2d 1048 (Fla. 2d DCA 1984); Hubbell v. State, 446 So. 2d 175 (Fla. 5th DCA), petition for review denied, 453 So. 2d 44 (Fla.1984); Frame v. State, 388 So. 2d 1381 (Fla. 2d DCA), appeal dismissed, 394 So. 2d 1152 (Fla.1980); Crosby v. State, 352 So. 2d 1247 (Fla. 2d DCA 1977). Here, as in Frame, the state presented no evidence that the items were not “innocent items.” Moreover, as in Preston and Crosby, the testimony of the officer only established that the tools in question could have been used for burglary purposes and not that they were used or intended to be used for such purposes.
Reversed.
RYDER, C.J., and DANAHY, J., concur.
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Thomas v. State, 531 So. 2d 708 (Fla. 1988)…BARKETT, Justice. We have for review State v. Thomas, 508 So. 2d 1287 (Fla. 4th DCA 1987), based on express and direct conflict with K.W. v. State, 468 So. 2d 368 (Fla. 2d DCA 1985), and Preston v. State, 373 So. 2d 451 (Fla. 2d DCA 1979), cert. denied, 383 So. 2d 1203 (Fla.1980). We have jurisdiction. Art. V, [*709] § 3(b)(3), Fla. Const. We approve the decision below. Petitioner was arrested after a confid…1 / 2
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State v. Royce Edward Anderson, 569 So. 2d 1369 (Fla. 5th DCA 1990)…as Todd Miller. He also possessed a pry bar and was wearing gloves. Anderson contended that since pry bars, screwdrivers, pliers and flashlights are “tools of everyday use,” possession alone is not evidence of a crime. He relies on K. W. v. State, 468 So. 2d 368 (Fla. 2d DCA 1985) for the proposition that the state must present evidence of an item’s actual use in a burglary or attempted burglary. In K. W. v. State, the juvenile was found with a knife, wire cutters and coins in his pocket. However, there was…
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State v. Thomas, 508 So. 2d 1287 (Fla. 4th DCA 1987)…guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Appellee's interpretation of the statute is based upon a line of cases from the second district court of appeal, exemplified by K.W. v. State, 468 So. 2d 368 (Fla. 2d DCA 1985). [*1289] That court’s reasoning, in turn, is apparently based upon a statement by the supreme court, in a somewhat different context, that “for such a tool [simple household tool] to be ‘illegal,’ it must be used as a burglary too…
Authorities Cited
- Crosby v. State, 352 So. 2d 1247 (Fla. 2d DCA 1977)
- Dogan Inanc, M.D. v. Schreckengost, 373 So. 2d 451 (Fla. 2d DCA 1979)
- Preston v. State, 373 So. 2d 451 (Fla. 2d DCA 1979)
- Frame v. State, 388 So. 2d 1381 (Fla. 2d DCA 1980)
- Vinton Gail Hubbell v. State, 446 So. 2d 175 (Fla. 5th DCA 1984)
- The Major Grp. OF W. Coast Fla., Inc. v. Cunningham, 452 So. 2d 1048 (Fla. 2d DCA 1984)
- James v. State, 452 So. 2d 1048 (Fla. 2d DCA 1984)