JOHNNY RAY DOWIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of breaking and entering a dwelling with intent to commit assault and battery. The Florida District Court of Appeal reversed and remanded because the State failed to prove the essential element of intent to commit the misdemeanor, though it had proven the breaking and entering itself.
The intent to commit the specified misdemeanor is an essential element of the offense of breaking and entering, and the State's failure to prove such element is fatal. The evidence was legally sufficient only to support conviction for the lesser included offense of trespass.
[1] A conviction for breaking and entering a dwelling house with intent to commit a misdemeanor requires proof of the intent to commit a specific misdemeanor.
[2] The State bears the burden of proving the intent element of breaking and entering beyond a reasonable doubt.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There is not, however, even a shred of evidence from which the jury could lawfully infer that at the time of the breaking and entering appellant had a fully formed, conscious intent to commit the misdemeanor of assault and battery, or for that matter, the intent to commit any misdemeanor.”
The court's central holding that the State failed to prove the essential element of intent.
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with breaking and entering a dwelling house with intent to commit assault and battery. The State presented evidence identifying …
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OWEN, Judge.
Appellant was charged with and convicted of breaking and entering a dwelling house with intent to commit a misdemean-or, to wit: assault and battery.
When read from the cold record, the State’s evidence as to identification of appellant as the culprit can only be described as incredible. Nonetheless, if believed by the jury (as it obviously was) it was legally sufficient to establish the identity of appellant as the culprit, and thus there was no error in denying the motion for judgment of acquittal on this ground. Neither was there error, as raised by appellant’s second point, in refusing to instruct the jury on the penalties for the various crimes for which appellant could have been convicted under the Information. Johnson v. State, 308 So. 2d 38 (Fla.1975).
There is not, however, even a shred of evidence from which the jury could lawfully infer that at the time of the breaking and entering appellant had a fully formed, conscious intent to commit the misdemeanor of assault and battery, or for that matter, the intent to commit any misdemeanor. The intent charged in the Information is an essential element of the offense, Vawter v. State, 63 So. 2d 255 (Fla.1953); Jenkins v. State, 58 Fla. 62, 50 So. 582 (1909); Cole v. State, 276 So. 2d 100 (Fla.App. 2nd, 1973), and the State’s failure to prove such element is fatal. Simpson v. State, 81 Fla. 292, 87 So. 920 (1921). The State’s evidence of intent was wholly circumstantial and, far from excluding every reasonable hypothesis of lack of intent to commit assault and battery, was actually quite consistent with the very reasonable hypothesis that the alleged intruder was there as the result of a tryst. No useful purpose would be served by detailing this evidence.
The jury was instructed that it could find appellant guilty of trespass as a lesser included offense, and this is the highest offense of which the evidence in this case is legally sufficient to sustain a conviction. The judgment and .sentence are severally reversed and this cause remanded with directions to enter a judgment finding him guilty of trespass and to sentence appellant accordingly.
Reversed and remanded.
WALDEN, C. J., and CROSS, J., concur.
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Citator
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Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981)…welling or there was a human being in the structure or conveyance at the time the offender entered or remained in it (section 810.02(3)). . Vawter v. State, 63 So. 2d 255 (Fla.1953); Charles v. State, 36 Fla. 691, 18 So. 369 (1895); Dowis v. State, 326 So. 2d 196 (Fla. 4th DCA 1976); Cole v. State, 276 So. 2d 100 (Fla. 2d DCA 1973). . For similar reasoning relating to the word “knowingly,” see State v. Buffett, 397 So. 2d 1060 (Fla. 2d DCA 1981). . The allegation in count 2 was not sufficient to allege a t…
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Waters v. State, 401 So. 2d 1131 (Fla. 4th DCA 1981)…er logical inference might be that Mr. Waters intended to commit some other offense. Simpson, supra. That being the case, his conviction for attempted burglary with the intent to commit the specific offense of theft cannot stand. In Dowis v. State, 326 So. 2d 196 (Fla. 4th DCA 1976), this court directed that the defendant’s burglary conviction be reduced to a conviction for trespass, when the state failed to prove that the defendant’s entry was made with the intent to commit the specified misdemeanor of assa…
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Gifford v. State, 355 So. 2d 436 (Fla. 4th DCA 1978)…Bennett v. State, 316 So. 2d 41 (Fla.1975). [*437] We also agree that the appellant was entitled, pursuant to his request, to have the jury instructed on the offense of trespass, as a lesser included offense of breaking and entering. Dowis v. State, 326 So. 2d 196 (Fla. 4th DCA 1976). The judgment of the trial court is hereby reversed with directions that a new trial be granted in accordance with this opinion. SCHWARTZ, ALAN R., Associate Judge, concurs. DOWNEY, J., concurs specially, with opinion.…
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
- Simpson v. State, 81 Fla. 292 (Fla. 1921)
- Johnson v. State, 308 So. 2d 38 (Fla. 1974)
- Jenkins v. State, 58 Fla. 62 (Fla. 1909)
- Vawter v. State, 63 So. 2d 255 (Fla. 1953)
- Emil T. Cole v. State, 276 So. 2d 100 (Fla. 2d DCA 1973)