STATE OF FLORIDA, APPELLANT,
v.
JEFFREY DOPSON AND DALTON WIN STUCKY, APPELLEES
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Florida charged defendants with armed breaking and entering, alleging they stole a loaded .38 caliber pistol during the commission of a residential burglary. The trial court dismissed the charge, requiring proof of intent to use the weapon in furtherance of the crime; the appellate court reversed, holding that merely taking possession of a dangerous weapon during a breaking and entering constitutes 'arming oneself' under the statute without requiring proof of intent to use the weapon.
Taking possession of a loaded pistol during a breaking and entering constitutes 'arming oneself' with a dangerous weapon under § 810.01(1), F.S.1973, without requiring proof of intent to use the weapon in furtherance of the crime. The stipulated facts were sufficient to support conviction under the armed breaking and entering statute rather than the unarmed version.
[1] A person commits a felony of the first degree under Florida Statute § 810.01(1) by breaking and entering a dwelling with intent to commit a felony, if the person is armed…
[2] The theft of a loaded pistol during the commission of a breaking and entering constitutes "arming oneself with a dangerous weapon" for the purposes of Florida Statute § 8…
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Join FLexlaw to unlock all legal intelligence“There is nothing ambiguous about the language of either section of the statute nor do we find any support for the alleged requirement that the state must show the person charged intended or was willing to use such weapon in the furtherance of the crime being committed.”
The court rejected the trial court's requirement of proving intent to use the weapon, finding no statutory basis for such a requirement.
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Join FLexlaw to unlock all legal intelligenceDefendants were observed breaking and entering a residence in Orlando during daylight hours. Within five minutes of exiting, they were apprehended by …
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DOWNEY, Judge.
Appellees were charged with armed breaking and entering with intent to commit a felony in violation of § 810.01(1), F. S.1973. A motion to dismiss the information pursuant to Rule 3.190(c)(4), RCrP was sustained and this appeal ensued.
The parties have stipulated to the following pertinent facts. Appellees were observed breaking and entering a residence in Orlando, Florida, during daylight hours. After a short period of time they were observed exiting the residence and within five minutes thereafter they were apprehended by the police. Among the items of personal property taken from the possession of the appellees was a loaded .38 caliber pistol which belonged to the owner of the residence involved in the breaking and entering. The owner had loaded the pistol some months before the theft.
Appellees contend and the trial court apparently agreed that the theft of a loaded pistol during the commission of a breaking and entering without any further showing of intent or willingness to use such weapon in furtherance of the breaking and entering does not constitute a violation of § 810.01(1), F.S.1973.
Section 810.01(1) provides in material part that “[w]hoever breaks and enters a dwelling house . . . with intent to commit a felony, . . . if he be armed with a dangerous weapon ... at the time of breaking and entering, or if he arm himself with a dangerous weapon, . shall be guilty of a felony of the first degree . . ..”
Section 810.01(2), F.S.1973, provides that “[i]f the offender be not armed, nor arm himself with a dangerous weapon as aforesaid, ... he shall be guilty of a felony of the second degree . . ..”
There is nothing ambiguous about the language of either section of the statute nor do we find any support for the alleged requirement that the state must show the person charged intended or was willing to use such weapon in the furtherance of the crime being committed. A loaded pistol is a dangerous weapon and to take possession thereof is tó arm oneself. Accordingly, the information properly charged a violation of § 810.01(1) rather than § 810.01(2), and the stipulated facts would be sufficient to support a conviction of the crime charged. See People v. Wallace, 36 Cal.App.2d 1, 97 P. 2d 256 (1940).
The judgment appealed from is reversed and the cause is remanded for further proceedings consistent herewith.
WALDEN' C. J., and OWEN, J., concur.
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Hardee v. State, 534 So. 2d 706 (Fla. 1988)…, but subsequent opin [*708] ions have held that the theft of a loaded gun while committing a burglary suffices to enhance the crime to armed burglary under section 810.02(2)(b). State v. Rodriguez, 402 So. 2d 86 (Fla. 3d DCA 1981); State v. Dobson, 323 So. 2d 644 (Fla. 4th DCA 1975). Other cases have held that even where a burglar steals an unloaded gun, he may be convicted of enhanced burglary if he later loads the gun or is shown to have the bullets in his possession. Mills v. State, 400 So. 2d 516 (Fla. 5…
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Salvadore Arroyo v. State, 564 So. 2d 1153 (Fla. 4th DCA 1990)…weapon if it was used in a manner likely to produce death or great bodily injury. A review of the record indicates that such was not the case here. The state inappropriately relies on Hardee v. State, 534 So. 2d 706 (Fla.1988), and State v. Dopson, 323 So. 2d 644 (Fla. 4th DCA 1975), as dispositive of this issue on other grounds, but those cases are clearly distinguishable. Neither involved the issues we have dealt with here. It was the state’s burden to prove beyond a reasonable doubt that Arroyo was carryi…
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Mills v. State, 400 So. 2d 516 (Fla. 5th DCA 1981)…unloaded, but at the time of his apprehension, both were loaded. The court noted the holding in Sanders, but also noted the language in that case that the theft of a gun, standing alone, did not elevate the degree of the crime. In State v. Dopson, 323 So. 2d 644 (Fla. 4th DCA 1975), the Fourth District Court of Appeal rejected the argument that the theft of a loaded pistol during the commission of a breaking and entering without any further showing of intent or willingness to use such weapon in furtherance…
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