JOHN E. HARDEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Hardee was convicted of burglary of a dwelling while armed. He challenged his conviction on grounds that there was no direct evidence he stole the gun or knew his co-defendant had armed himself, and that bullets found in his apartment did not prove he possessed a loaded firearm. The court affirmed, holding that co-defendants are jointly liable for acts in furtherance of a common criminal design, and that a firearm need not be loaded to constitute a dangerous weapon under the burglary statute.
The court held that: (1) under joint liability doctrine, Hardee is criminally responsible for his co-defendant's theft of the handgun because it was in furtherance of their common design to commit burglary; (2) a firearm need not be loaded to constitute a dangerous weapon for armed burglary purposes, as whether the firearm is empty or loaded is immaterial; and (3) the three-and-one-half-year sentence was within the applicable guidelines range and therefore proper.
[1] Each participant in a common criminal design is criminally responsible for the actions of associates committed in furtherance of that design.
[2] Whether an associate's act was in furtherance of a common criminal design is a factual question to be resolved on a case-by-case basis.
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Join FLexlaw to unlock all legal intelligence“where several persons combine to commit an unlawful act, each is criminally responsible for the actions of his associates committed in furtherance or prosecution of a common design.”
Establishes the joint liability principle governing Hardee's criminal responsibility for his co-defendant's actions
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Join FLexlaw to unlock all legal intelligenceAppellant Hardee and a co-defendant committed a burglary together. During the burglary, the co-defendant stole a handgun. Bullets were later recovered…
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PER CURIAM.
Appellant’s conviction of burglary of a dwelling while armed is challenged on two grounds. First, appellant argues that since there is no direct evidence that he, rather than, his co-defendant, stole the handgun during the course of the burglary nor that he knew his co-defendant had thus armed himself, he cannot be found guilty of the crime charged.
The applicable rule here is that “where several persons combine to commit an unlawful act, each is criminally responsible for the actions of his associates committed in furtherance or prosecution of a common design.” Hampton v. State, 336 So. 2d 378, 379-80 (Fla. 1st DCA), cert. denied, 339 So. 2d 1169 (Fla.1976). “The key is whether the extra criminal act done by one's confederate is in furtherance or prosecution of the intitial common criminal design. This is a factual question which must be resolved on a case-by-case basis.” Id. at 380 (footnotes omitted). Here, the theft of the handgun by appellant’s co-defendant was clearly an act in furtherance of the common criminal design to commit burglary.
Appellant relies on Gains v. State, 417 So. 2d 719 (Fla. 1st DCA 1982), disapproved on other grounds, State v. Kinchen, 490 So. 2d 21 (Fla.1985). That case is distinguishable, however, because there the court found that the evidence failed to establish that the alleged “wheel man” in an armed robbery was a willing, active participant in the robbery. Here, appellant was certainly an active participant in the burglary.
Appellant’s additional argument is that since there is no evidence that the bullets recovered in a search of his apartment fit the stolen gun, which was never recovered, he cannot be convicted of enhanced burglary under section 810.02(2)(b), Florida Statutes (1985). In essence, appellant contends that only a loaded gun constitutes a dangerous weapon for application of the statute. Given the ease with which a handful of bullets may be disposed of, such a rule would be anathema to law enforcement. In a slightly different context the supreme court has determined that whether a firearm is empty or loaded is not material to the issue of whether a person convicted of burglary had in possession a firearm for purposes of imposing a mandatory minimum sentence of three years’ incarceration. Bentley v. State, 501 So. 2d 600 (Fla.1987). There is no logical distinction to be made between that application and its relevance here. Accordingly, we approve the conviction.
Appellant also appeals his sentence. The recommended sentencing range under the guidelines in effect at the time the offense was committed on July 7, 1985, was two and one-half to three and one-half years’ incarceration. Appellant, sentenced to three and one-half years’ imprisonment, was therefore sentenced within the guide lines range. Accordingly, we affirm the sentence.
AFFIRMED.
HERSEY, C.J., and DOWNEY and GUNTHER, JJ., concur.
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Hardee v. State, 534 So. 2d 706 (Fla. 1988)…GRIMES, Justice. We review Hardee v. State, 516 So. 2d 110 (Fla. 4th DCA 1987). In order to explain the basis for our jurisdiction, it is first necessary to discuss the pertinent cases. John Hardee was convicted under section 810.02(2)(b), Florida Statutes (1985), of burglary of a dwelling while arméd with…1 / 2
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State v. Ashley, 601 So. 2d 1230 (Fla. 4th DCA 1992)…970). Clearly, under this standard, Mrs. Bentley displayed a firearm pursuant to section [*1232] 790.001(6). Whether the gun in her possession was loaded or whether she had available ammunition is irrelevant. 501 So. 2d at 602. In Hardee v. State, 516 So. 2d 110 (Fla. 4th DCA 1987), approved, 534 So. 2d 706 (Fla.1988), the defendant challenged his conviction for burglary of a dwelling while armed, contending that only a loaded gun constitutes a dangerous weapon for application of section 810.02(2)(b). This…1 / 2
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A.F. v. State, 568 So. 2d 94 (Fla. 2d DCA 1990)…nor that he was the one who actually took a gun from the store, assuming for the sake of argument that he was there. His first contention we have answered above, and his second contention we believe is answered by the rule stated in Hardee v. State, 516 So. 2d 110 (Fla. 4th DCA 1987), approved, 534 So. 2d 706 (Fla.1988). In Hardee, the defendant argued that he could not be convicted of burglary of a dwelling while armed because there was no direct evidence that he, rather than his codefendant, stole the hand…
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
- State v. Kinchen, 490 So. 2d 21 (Fla. 1985)
- Gains v. State, 417 So. 2d 719 (Fla. 1st DCA 1982)
- Bentley v. State, 501 So. 2d 600 (Fla. 1987)
- Hampton v. State, 336 So. 2d 378 (Fla. 1st DCA 1976)