NICHOLAS CAPPETTA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Nicholas Cappetta was convicted of two counts of breaking and entering with intent to commit grand larceny and one count of possessing burglary tools. The appellate court affirmed two convictions but reversed one conviction for breaking and entering because the state failed to prove the essential element of 'breaking.'
The court affirmed the convictions in Cases #62-5350 and #62-5584 but reversed the conviction in Case #62-6069 because the state failed to prove the essential element of 'breaking' required for a breaking and entering conviction. Breaking requires an act of physical force, which can be as slight as pushing open a closed door, but no such act was proved in the second case.
“The breaking must be an act of physical force although it may be as slight as the pushing open of a closed door.”
Establishes the legal standard for what constitutes 'breaking' in a breaking and entering offense.
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Join FLexlaw to unlock all legal intelligenceCappetta waived his right to a jury trial and was tried before a judge of the Criminal Court of Record for Dade County. He was convicted of breaking a…
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We have for consideration three cases which were tried together and the appeals consolidated for the purposes of briefing and oral argument.
Nicholas Cappetta, having waived jury, was tried and convicted by one of the judges of the Criminal Court of Record for Dade County, of breaking and entering the dwelling at 6201 La Gorce Drive, Miami Beach, Florida, with the intent to commit grand larceny (Case #62-5350), breaking and entering the dwelling house at 17300 N. E. 12th Avenue, Miami, Florida, with intent to commit grand larceny (Case #62-6069), and possessing burglary tools (Case #62-5584).
He was sentenced to five years in the State Penitentiary on each of the three convictions with the sentences running consecutively.
This court has examined the record on appeal and considered the points of law presented by appellant’s brief and after hearing, found no reversible error in Case #62-5350 or in Case #62-5584. We affirm the judgment and sentences appealed in these two cases. No novel questions are presented and no useful purpose would be served by a further discussion of the.se two appeals.
In Case #62-6069 which was upon a charge of breaking and entering a dwelling house with intent to commit grand larceny, the state failed to prove a breaking. This is an essential clement of the crime charged. Dedge v. State, 128 Fla. 343, 174 So. 725. The breaking must be an act of physical force although it may be as slight as the pushing open of a closed door. See Scott v. State, Fla.App.1962, 137 So.2d 625, and cases cited therein. In this instant case no physical act was proved. The accused was simply found inside a *311house which was not shown to have been closed.
We therefore reverse the judgment and sentence in Case #62-6069.
Affirmed as to part and reversed as to part.
(concurring in part and dissenting in part).
I concur with the majority as to cases #62-5350 and #62-5584 and dissent as to case #62-6069.
HENDRY, Judge
(concurring in part and dissenting in part).
I concur with the majority as to cases #62-5350 and #62-5584 and dissent as to case #62-6069.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cappetta v. Louie L. Wainwright, 203 So. 2d 609 (Fla. 1967)…to retain counsel until the day before the date set for trial was attributable to other than his own neglect.6 Accordingly, writ of habeas corpus is discharged. It is so ordered. THOMAS, ROBERTS, DREW and ERVIN, JJ., concur. . Cappetta v. State, 162 So. 2d 309 (Fla.App.3rd 1964). . State ex rel. Ervin v. Smith, 160 So. 2d 518, 521 (Fla.1964). Accord, Jackson v. State, 166 So. 2d 194 (Fla.App.3rd 1964); Burke v. State, 160 So. 2d 523 (Fla.App.1st 1964). . Warner v. Cochran, 135 So. 2d 421 (Fla.1961); Kir…
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Arsenio Garcia v. State, 208 So. 2d 108 (Fla. 3d DCA 1968)…PER CURIAM. Affirmed. See Davis v. State, Fla. 1956, 87 So. 2d 416; Smith v. State, 80 Fla. 315, 85 So. 911 (1920); Jones v. State, Fla.App.1966, 192 So. 2d 285; Cappetta v. State, Fla.App. 1964, 162 So. 2d 309.…
Authorities Cited
- Scott v. State, 137 So. 2d 625 (Fla. 2d DCA 1962)
- Gus R. Dedge v. State, 128 Fla. 343 (Fla. 1937)