FLOYD F. FOSTER AND EARNEST L. KIRKLAND, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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Foster and Kirkland were convicted of breaking and entering with intent to commit grand larceny, but the appellate court found insufficient evidence of actual entry. The court reversed and remanded for conviction on the lesser included offense of attempted breaking and entering.
The court held that while there was sufficient evidence of breaking with intent to commit grand larceny, there was insufficient evidence to prove actual entry. The defendants could be convicted of the lesser included offense of attempted breaking and entering with intent to commit a felony.
“In order to prove the charge of breaking and entering under the statute, the state must prove beyond a reasonable doubt that an entry did, in fact, take place.”
Establishes the essential legal requirement that entry is a necessary element of the crime of breaking and entering.
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Join FLexlaw to unlock all legal intelligenceFoster and Kirkland broke into a building using a crowbar with intent to commit grand larceny. The evidence established a breaking occurred, but there…
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Foster and Kirkland appeal from their conviction and sentence for breaking and entering a building with the intent to commit a felony, to-wit, grand larceny.
The appellants argue several different points for reversal. We have considered the various points which they raised and have found them to be without merit, except for the point alleging the insufficiency of competent, substantial evidence to prove the element of entering.
Fla.Stat. § 810.02, F.S.A. provides in pertinent part:
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“Whoever breaks and enters any other building or any ship or vessel with intent to commit a felony, or after having entered with such intent breaks such other building, ship or vessel, shall be punished by imprisonment in the state prison not exceeding fifteen years.”
In order to prove the charge of breaking and entering under the statute, the state must prove beyond a reasonable doubt that an entry did, in fact, take place. Miller v. State, Fla.App.1966, 187 So.2d 51. In the instant case, there was sufficient, competent evidence to prove a breaking with the intent to commit grand larceny. There was not sufficient, competent evidence to prove that either of these defendants had made an entry.
In Miller on Criminal Law (1934), a discussion of the necessary elements in order to prove entry is set forth at § 108(c) p. 33. It states: “The entry may be made by an instrument instead of the body, but in such case, to be an entry, the instrument must be inserted not merely for the purpose of breaking but for the purpose of committing the contemplated felony.” See also 13 Am.Jur.2d Burglary § 10.
Here, there was no evidence whatsoever that there had been any entry into these premises except a breaking by means of a crowbar. It was not an instrument which would have consummated the contemplated felony. Compare Russell v. State, 1952, 158 Tex.Cr.R. 350, 255 S.W.2d 881 with Walker v. State, 1879, 63 Ala. 49. The state, therefore, has failed to prove beyond and to the exclusion of every reasonable doubt that these defendants entered the property involved herein.
There was sufficient, competent evidence, however, that these defendants had committed the crime of attempting to break and enter these premises with the intent to commit grand larceny. See Fla. Stat. §§ 924.34, 776.04, F.S.A.; 13 Am.Jur. 2d Burglary § 29; State v. Pigques, Mo. 1958, 310 S.W.2d 942; Russell v. State, supra, Bronson v. State, 152 Fla. 28, 10 So.2d 718 (1942).
*408The order herein appealed is, therefore, reversed and the cause remanded to the trial court with instructions to vacate the adjudication and sentence heretofore entered and to adjudicate and sentence these defendants for the crime of attempted breaking and entering with intent to commit a felony; to-wit, grand larceny.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Stanley v. State, 626 So. 2d 1004 (Fla. 2d DCA 1993)…intent to commit an offense therein. State v. Hankins, 376 So. 2d 285 (Fla. 5th DCA 1979). The entry must be made by some part of the body or an instrument used not only for the breaking but for the purpose of committing the felony. Foster v. State, 220 So. 2d 406 (Fla. 3d DCA), cert. denied, 225 So. 2d 913 (Fla.1969). See also State v. Spearman, 366 So. 2d 775 (Fla. 2d DCA 1978). In this case, the state only proved that there was a new hole in the wall and that Stanley had drywall residue on his pants. Thi…
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Baker v. State, 622 So. 2d 1333 (Fla. 1st DCA 1993)…actually used to commit the contemplated crime; where the instrument is merely inserted in the course of the break, or to facilitate subsequent entry, its presence inside the structure does not constitute an entry by the defendant. Foster v. State, 220 So. 2d 406 (Fla.3rd DCA), cert. denied, 225 So. 2d 913 (Fla.1969); W.R. LaFave & A.W. Scott, Jr., 2 Substantive Criminal Law § 8.13(b) (1986); C.E. Torcia, 3 Wharton’s Criminal Law § 333 (1978); see State v. Spearman, 366 So. 2d 775 (Fla.2nd DCA 1978). Despit…
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State v. Spearman, 366 So. 2d 775 (Fla. 2d DCA 1978)…he whole body but includes insertion of any part of the body or of an instrument designed to effect the contemplated crime. State v. Whitaker, 275 S.W. 2d 316 (Mo.1955); Commonwealth v. Myers, 223 Pa.Super. 75, 297 A. 2d 151 (1972); Foster v. State, 220 So. 2d 406 (Fla.3d DCA 1969); 13 Am.Jur.2d Burglary § 10 (1964). The legislature is presumed to recognize the meaning of the terms it employs. Furthermore, appellee’s entire body intruded into the curtilage of Dunson’s residence. In view of the plain language…
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
- Bronson v. State, 152 Fla. 28 (Fla. 1942)
- Atl. Food Supply Co. v. Massey, 152 Fla. 43 (Fla. 1942)
- Theo Miller v. State, 187 So. 2d 51 (Fla. 3d DCA 1966)