LONNIE I. SLOAN
v.
STATE
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Appellant was convicted of multiple crimes including possession of burglary tools. On appeal, the court agreed with appellant's contention that the trial court erred in denying his motion for judgment of acquittal on the possession of burglary tools charge because the State failed to establish a critical element of the offense.
The trial court erred in denying appellant's motion for judgment of acquittal on the possession of burglary tools charge because the State failed to prove that appellant committed or attempted to commit a burglary or trespass, or did any overt act toward such commission—a required element of the offense.
[1] Possession of burglary tools requires proof that the defendant committed, attempted to commit, or did some overt act toward committing a burglary or trespass; mere posses…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted after jury trial of aggravated assault of a law enforcement officer, resisting a law enforcement officer with violence, batter…
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PER CURIAM. Appellant was convicted, after a jury trial, of aggravated assault of a law enforcement officer, resisting a law enforcement officer with violence, battery on a law enforcement officer, possession of burglary tools, and carrying a concealed weapon. On appeal, he challenges only the possession of burglary tools conviction. He contends that the trial court should have granted his motion for judgment of acquittal on that charge.
We agree.
To prove the crime of possession of burglary tools,1 the State is required to prove that the defendant (1) intended to commit a burglary or trespass, (2) had in his possession a tool or implement that he intended to use, or allow to be used, in the commission of the burglary or trespass, and (3) did some overt act toward the commission of a burglary or trespass. See Thomas v. State, 531 So. 2d 708, 709-10 (Fla. 1988).
Here, the State failed to present evidence that Appellant committed a burglary or trespass, attempted to commit a burglary or trespass, or otherwise did some overt act toward the commission of a burglary or trespass. Accordingly, it was error for the trial court to deny Appellant’s motion. On remand, the trial court is directed to vacate Appellant’s possession of burglary tools conviction and to resentence him accordingly.
REVERSED and REMANDED.
COHEN, C.J. and TORPY and EVANDER, JJ., concur. 1 “Possession of burglary tools.—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 trespass shall be guilty of a felony of the third degree . . . .” § 810.06, Fla. Stat. (2016).
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- Thomas v. State, 531 So. 2d 708 (Fla. 1988)