JERRY HARDWICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed burglary conviction but reversed possession of burglary tools conviction because evidence showed defendant intended to use wire cutters to steal materials after entering, not to unlawfully enter the premises.
Possession of burglary tools requires proof the defendant intended to use the tools to unlawfully enter premises, not merely to commit theft after entry.
[1] Possession of burglary tools requires proof defendant intended to use tools to unlawfully enter premises, not merely to commit theft after lawful or unauthorized entry.
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Join FLexlaw to unlock all legal intelligence“the offense of possession of burglary tools requires proof that the defendant used or intended to use the tools in the course of unlawfully entering the premises of another, which is not satisfied by proof that the defendant intended to use the tools to commit an offense after entering the premises”
Court explaining the statutory requirement for possession of burglary tools conviction
Hardwick was found carrying wire cutters inside a house under construction, which he intended to use to cut copper tubing and electrical wiring for th…
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Appellant, Jerry Hardwick, appeals his convictions for burglary of a building and possession of burglary tools. We affirm the trial court’s denial of Hardwick’s motion to dismiss, but reverse the court’s denial of Hardwick’s motion for judgment of acquittal on the charge of possession of burglary tools, because the evidence did not establish that he intended to use the tool found in his possession to commit a burglary or a trespass.
The state did not put on any evidence of forced entry, but only evidence that Hardwick carried wire cutters in order to cut copper tubing and electrical wiring inside a house under construction for the purpose of stealing it. The offense of possession of burglary tools requires proof that the defendant used or intended to use the tools in the course of unlawfully entering the premises of another, which is not satisfied by proof that the defendant intended to use the tools to commit an offense after entering the premises. See Calliar v. State, 760 So.2d 885 (Fla.1999) (quashing the conviction for possession of burglary tools because the evidence showed that the defendant entered through an open gate, and thus the state proved only that he possessed the tools with the intent to commit a theft inside and not that he intended to use the tools to get onto the premises). Accord Burke v. State, 672 So.2d 829 (Fla. 1st DCA 1995).
Affirmed in part and reversed in part.
WOLF, PADOVANO, and THOMAS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Clark v. State, 58 So. 3d 401 (Fla. 1st DCA 2011)…mpetent substantial evidence to support Clark’s conviction on the charge of possession of burglary tools pursuant to the Florida Supreme Court’s decision in Calliar v. State, 760 So. 2d 885 (Fla.1999), and this court’s decision in Hardwick v. State, 16 So. 3d 1045 (Fla. 1st DCA 2009). At trial, the state presented the testimony of law enforcement officers who were at the scene when Clark was arrested. Officer Vought testified that when he arrived at the scene, Clark had been squatting down behind an air cond…1 / 2
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Fortson v. State, 179 So. 3d 414 (Fla. 1st DCA 2015)…endant used or intended to use the tools in the course of unlawfully entering the premises of another, which is not satisfied by proof that the defendant intended to use the tools to commit an offense after entering the premises.” Hardwick v. State, 16 So. 3d 1045, 1046 (Fla. 1st DCA 2009). We must read section 810.06, Florida Statutes (2013) (providing “Whoever has in his or her possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or tre…
Authorities Cited
- Daryell Calliar v. State, 760 So. 2d 885 (Fla. 1999)
- Burke v. State, 672 So. 2d 829 (Fla. 1st DCA 1995)