STATE OF FLORIDA, PETITIONER,
v.
WILLIAM G. HIGH, RESPONDENT
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Florida Supreme Court held that consent to enter is irrelevant under the statute prohibiting entry into a building with intent to commit a misdemeanor, distinguishing this crime from breaking and entering which requires non-consent. The Court reversed the District Court's reversal of High's conviction for entering a telephone booth without breaking with intent to commit a misdemeanor.
Consent to enter is irrelevant under the statute prohibiting entry with wrongful intent. The Legislature, by creating a crime of entry with intent to commit a misdemeanor (rather than breaking and entering), removed the requirement that an entry be unconsented or unlawful except as it becomes unlawful by reason of the intent of the person entering.
[1] A telephone booth enclosed with walls and a ceiling is a building within the meaning of burglary statutes.
[2] A breaking, in the context of burglary, requires the actual or constructive use of force against a part of a building in effectuating a non-consented entry.
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Join FLexlaw to unlock all legal intelligence“A breaking is the actual or constructive use of some force against a part of a building in effectuating an un-consented entry.”
Explains the common law concept of breaking, which requires non-consent as an inherent element
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Join FLexlaw to unlock all legal intelligenceWilliam G. High was convicted of entering a telephone booth without breaking with intent to commit a misdemeanor in violation of Fla.Stat. § 810.05. T…
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This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Second District, reported at 260 So.2d 549. We have jurisdiction pursuant to Article V, Section 3(b)(3), Fla.Const.F.S.A.
This cause is very similar to State v. Jackson, 281 So.2d 353, our opinion in which is also filed this date. Jackson involved a conviction for breaking and entering a telephone booth with intent to commit a felony. The conviction in the instant case was for entering a telephone booth, without breaking, with intent to commit a misdemeanor. In both cases, the District Court reversed on the grounds that the telephone booths involved were not ‘buildings’ within the meaning of the burglary statutes and that non-consent to enter the booths had not been established. See our opinion in Jackson for a discussion of the conflicts created by these decisions.
In Jackson we held that a telephone booth enclosed with walls and a *357ceiling is a building within the meaning of our burglary statutes. Nevertheless, we affirmed the District Court’s reversal of the convictions in Jackson on the issue of non-consent to enter. While non-consent is not an “element” of a crime of breaking and entering with felonious intent, it is inherent in the common law concept of a “breaking”. A breaking is the actual or constructive use of some force against a part of a building in effectuating an tin-consented entry. See 12 C.J.S. Burglary § 11.
In the instant case, however, the issue of consent or non-consent to enter is irrelevant. Respondent was convicted of entering without breaking with intent to commit a misdemeanor, as prohibited by Fla.Stat. § 810.05, F.S.A. By so changing the common law burglary definition, the Legislature has removed the requirement that an entry be unconsented or unlawful in any way, except as it becomes unlawful by reason of the intent of the person entering.
We have not had occasion to consider this question before, but several other courts have. Generally, other courts have also held that consent to enter is irrelevant under statutes proscribing “entry” with wrongful intent. See 93 A.L.R.2d 533.
Since, in this case, the prosecution did not have to establish non-consent to enter, a different result must be reached than in Jackson. The decision of the District Court of Appeal, Second District, is reversed. The District Court is directed to reinstate the judgment of the trial court, subject to consideration by the District Court of points on appeal not yet reached by it.
It is so ordered.
ROBERTS, ERVIN, McCAIN and DEKLE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Hicks, 421 So. 2d 510 (Fla. 1982)…quired an entering with intent to commit a crime.1 The pre-1975 offense of entering, without breaking, with the intent to commit a felony under section 810.03, Florida Statutes (1973), did not contain a non-consent element. See State v. High, [*512] 281 So. 2d 356 (Fla.1973). Furthermore, with those burglary offenses which had breaking as an element, non-consent was merely a sub-element of breaking. In 1975, these various burglary offenses were consolidated into the present statute, and Florida, like many jur…
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RAY v. State, 522 So. 2d 963 (Fla. 3d DCA 1988)…v. State, 102 Fla. 928, 136 So. 695 (1931); State v. Hicks, 421 So. 2d 510 (Fla. 1982). The breaking requirement — that is, "the actual or constructive use of some force against a part of a building in effecting an unconsented entry,” State v. High, 281 So. 2d 356, 357 (Fla. 1973) (emphasis in original) — meant that the initial entry had to be trespassory. As Professor LaFave notes, ‘‘[t]he law was not ready to punish one who had been ‘invited’ in any way to enter the dwelling. The law sought only to keep out…
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Skov v. State, 292 So. 2d 64 (Fla. 2d DCA 1974)…eaks and énters” or “enters without breaking” with intent to commit a misdemeanor may be convicted under F.S. 810.05, F.S.A. The appellant could have been convicted under F.S. 810.-05, F.S.A., for entering without breaking. State v. High, Fla. 1973, 281 So. 2d 356. The State chose to charge him with breaking and entering, but, in view of Jackson, could not convict him of that offense. One cannot be charged in an indictment or information with one offense and convicted of another. Perkins v. Mayo, Fla. 1957,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Bennie Jackson and Henry Fisher, 281 So. 2d 353 (Fla. 1973)
- High v. State, 260 So. 2d 549 (Fla. 2d DCA 1972)