JAMES Y. GHENT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ghent was convicted of both attempted burglary and possession of burglary tools arising from the same criminal episode. The court held that these convictions constitute improper double punishment for a single crime and reversed, requiring the trial court to vacate one of the convictions.
A defendant cannot be convicted of both attempted burglary and possession of burglary tools for the same attempted burglary. The trial court must vacate one of the two convictions because dual punishments constitute an improper multiplication of penalties.
[1] A conviction for possession of burglary tools requires proof of intent to commit burglary, an overt act to effect that intent, and possession of burglary tools.
[2] The crime of possession of burglary tools criminalizes an attempt to commit a burglary or trespass, discerned through the possession of tools coupled with the intent to u…
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Join FLexlaw to unlock all legal intelligence“the burglary tool statute "criminalizes an attempt to commit a burglary or trespass, which is discerned through the possession of tools or devices coupled with the defendant's intent to use those tools in the commission of the crime."”
Establishes that the burglary tools statute and attempted burglary statute both address the same criminal conduct and intent
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Join FLexlaw to unlock all legal intelligenceAn officer found Ghent hiding in shrubbery adjacent to a private home, attempting to conceal a screwdriver and glove. Scratch marks appeared on a wind…
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PER CURIAM.
Ghent appeals his conviction and sentence for attempted burglary of a structure and possession of burglary tools. He argues that he cannot be convicted of both those crimes because in the instant case they represent convictions for the same attempted burglary. We agree and reverse and remand for proceedings consistent with this opinion.
The elements of the crime of attempted burglary are: 1) the intent to commit burglary; and 2) some overt act committed to effect that intent. See Jones v. State, 492 So. 2d 1124 (Fla. 3d DCA), review denied, 501 So. 2d 1282 (Fla.1986). The elements of the crime of possession of burglary tools are: 1) the intent to commit burglary; 2) some overt act committed to effect that intent; 3) possession of burglary tools. See Thomas v. State, 531 So. 2d 708 (Fla. 1988). As noted in Thomas, the burglary tool statute “criminalizes an attempt to commit a burglary or trespass, which is discerned through the possession of tools or devices coupled with the defendant’s intent to use those tools in the commission of the crime.” Thomas, 531 So. 2d at 709.
Here, an officer found Ghent, hiding in the shrubbery adjacent to a private home, attempting to hide a screwdriver and glove. Scratch marks appeared on a window at the home. Ghent came out of the bushes and was arrested. Ghent confessed to the two officers on the scene that he had attempted to break into the house through use of the screwdriver but failed.
Ghent received a five-year sentence for attempted burglary and an additional five-year sentence for possession of burglary tools, the two sentences to run consecutively. We agree that Ghent cannot be convicted of both these crimes for the same attempted burglary. See Shupe v. State, 517 So. 2d 780, 782 (Fla. 5th DCA 1988) (defendant could not be convicted of both grand theft and robbery for same purse-snatching, and one conviction would have had to be vacated). Here, dual punishments are improper since reason dictates that the legislature’s probable intent was only to provide for a more severe penalty when a single attempted burglary was accompanied by an additional aggravating factor, not to multiply punishments because other aggravating factors also occurred. Shupe, 517 So. 2d at 781-82, citing Carawan v. State, 515 So. 2d 161, 170 (Fla.1987).
Accordingly, we reverse and remand this case to the trial court for it to vacate either the attempted burglary conviction or the possession of burglary tools conviction.
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Jones v. State, 608 So. 2d 797 (Fla. 1992)…GRIMES, Justice. We review Jones v. State, 588 So. 2d 644 (Fla. 2d DCA 1991), because of its conflict with Ghent v. State, 536 So. 2d 285 (Fla. 3d DCA 1988), review denied, 545 So. 2d 1369 (Fla.1989). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. Jones was arrested for attempting to pick a lock on the door of a residence. He was convicted an…1 / 2
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Jones v. State, 588 So. 2d 644 (Fla. 2d DCA 1991)…uble jeopardy for convictions of both attempted burglary and possession of burglary tools. In reaching this conclusion, we agree with the result reached in Morgan v. State, 576 So. 2d 792 (Fla. 4th DCA 1991) and certify conflict with Ghent v. State, 536 So. 2d 285 (Fla. 3d DCA), review denied, 545 So. 2d 1369 (Fla.1989). We also affirm the sentence for attempted burglary, finding that the sentence imposed is a lawful probationary split sentence. A person may be convicted of and sentenced for separate offense…
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Smith v. State, 588 So. 2d 654 (Fla. 2d DCA 1991)…disapproved earlier cases that had held that to establish intent in cases where a common household item was the alleged burglary tool, the tool must have been used in an attempted burglary or a burglary. Id. We have also considered Ghent v. State, 536 So. 2d 285 (Fla. 3d DCA 1988), and find that it is not applicable to the present case. Ghent relied on the principles set forth in Carawan v. State, 515 So. 2d 161 (Fla. 1987), and is not applicable to this case which is governed by section 775.021(4), Florida…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Thomas v. State, 531 So. 2d 708 (Fla. 1988)
- Jones v. State, 492 So. 2d 1124 (Fla. 3d DCA 1986)
- Shupe v. State, 517 So. 2d 780 (Fla. 5th DCA 1988)