GARY BURNETTE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gary Burnette was convicted of possession of burglary tools after police found keys on him in an alley behind a drug store. The Florida District Court of Appeal reversed, holding that the state failed to prove the required element of intent to use the keys for burglary.
The state failed to adduce sufficient competent evidence to prove the element of possession with intent to use the keys for burglary. The court reversed the conviction and ordered Burnette's discharge.
[1] A conviction for possession of burglary tools requires proof of intent to use the tools for burglary.
[2] Evidence of possession of keys alone, without proof of intent to use them for burglary, is insufficient to support a conviction for possession of burglary tools.
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Join FLexlaw to unlock all legal intelligence“the state failed to adduce sufficient competent evidence to prove the element of possession of the keys with the intent to use or employ or allow the burglary tool to be used or allowed or employed for the commission of a burglary”
Establishes the court's holding that the prosecution did not present adequate evidence of the specific intent element required for conviction
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Join FLexlaw to unlock all legal intelligenceOn October 28, 1969, at 1:30 A.M., a Dade County detective found Burnette in an alley behind a drug store. Burnette stated he could not sleep and was …
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Appellant-defendant Gary Burnette was charged by information with possession of burglary tools and was tried non-jury. From a judgment of conviction and a sentence entered thereupon, he appeals. See § 810.06, Fla.Stat., F.S.A. We reverse and order that he be discharged.
A Metropolitan Dade County detective saw defendant on October 28, 1969, at about 1:30 A.M. in an alley at the rear of a drug store. On being questioned, defendant said he could not sleep and decided to go for a walk, and that he was on probation for burglary from juvenile court. On being asked about a bulge in his pocket, defendant produced about thirty keys on a key ring. The detective asked if defendant knew what the keys were used for, and defendant replied that they would open locked boxes on cigarette and washing machines, and that the keys belonged to his step-father, who did not know that defendant had taken them.
On cross-examination the detective testified that defendant was about ten feet from the building, that there were no signs of an attempted break-in, and that there were no signs of a rifled machine. He also testified that there were no machines behind the store. He did not perform tests to determine what the keys really did fit. He did testify however, that the store contained machines which were located in front of where defendant stood.
The testimony further reveals that defendant was confronted by the detective about three or four blocks from his house. Defendant testified that he was going to a friend’s house to “show off” the keys which he had taken at about 5:00 P.M. from his step-father. He emphatically denied any intent to burglarize stores or machines.
We have carefully reviewed the record, and compared the case of Troise v. State, Fla.App.1965, 177 So.2d 24 with Mesenbrink v. State, Fla.App.1970, 231 So.2d 852. We express the view that the state failed to adduce sufficient competent evidence to prove the element of possession of the keys with the intent to use or employ or allow the burglary tool to be used or allowed or employed for the commission of a burglary-
Therefore, we reverse the judgment of the trial court, and further order that the appellant be discharged from custody which resulted from the charge upon which he was convicted in the instant case.
Reversed with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Preston v. State, 373 So. 2d 451 (Fla. 2d DCA 1979)…with respect to items not common or ordinary but for which the defendant had an innocent explanation. Again, the surrounding circumstances, though suspicious, were considered insufficient to show unlawful intent. See, for example, Burnette v. State, 258 So. 2d 470 (Fla. 3d DCA 1972) (borrowed vending machine keys); People v. Polenis-iak, 26 Ill.2d 317, 186 N.E. 2d 271 (1962) (sheetmetal worker’s tools); People v. Bibbs, 60 Ill.App.3d 878, 18 Ill.Dec. 270, 377 N.E. 2d 559 (1978) (automobile repairman’s tools);…
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Biggs v. State, 329 So. 2d 415 (Fla. 4th DCA 1976)…that in order to be guilty of this particular offense, the State must establish that the tools are associated with some immediate or nearby illegal activity either past or threatened. “The defendant relied on the following cases: Burnette v. State, 258 So. 2d 470 (3rd DCA 1972); Mesenbrink v. State, 231 So. 2d 852 (3rd DCA 1970); Diaz v. State, 82 So. 2d 135 (Fla. 1955) (Chief Justice Drew’s dissenting opinion); Rinehart v. State, 114 So. 2d 487, (2nd DCA 1959) and Foster v. State, 286 So. 2d 549 (Fla. 1973)…
Authorities Cited
- Troise v. State, 177 So. 2d 24 (Fla. 3d DCA 1965)
- Mesenbrink v. State, 231 So. 2d 852 (Fla. 3d DCA 1970)