JOSEPH H. CROSBY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the state failed to produce sufficient evidence to sustain a conviction for possession of burglary tools, as there was no proof the coathangers were actually used in the burglary.
Appellant was convicted of burglary and possession of burglary tools after he and a co-defendant stole a purse from a locked car. Police found two coa…
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OTT, Judge.
Appellant Joseph H. Crosby argues that the state did not produce sufficient evidence in this case to sustain a conviction for burglary tools. We agree.
The state filed an information charging appellant with burglary and possession of burglary tools. At trial, the prosecution presented evidence to the effect that appellant and his co-defendant had stolen a purse from a locked car. When the police captured appellant shortly after the burglary, they found two coathangers in the car in which appellant was riding. The prosecution did not present any evidence to show that these coathangers had been used in the burglary or that they had been altered for such a purpose. The officer who found the coathangers only testified that he had in the past used similar hangers to get into locked cars.
A jury found appellant guilty of burglary and possession of burglary tools. Thereafter appellant filed a motion for a new trial which the trial court denied. We believe that the court erred in this ruling.
A conviction for possession of burglary tools can only be sustained in the case of common household tools where there is evidence that the object was in fact used as a burglary tool. Foster v. State, 286 So. 2d 549 (Fla.1973). In the present case, there was absolutely no evidence that the coath-angers were used to break into the car. The officer’s testimony only established that they could have been used for such a purpose and not that they were used for that purpose.
In view of what we have said, we reverse the order of the trial court and remand the case for a new trial on the charge relating to possession of burglary tools. We find that the other points which appellant raises have no merit and therefore we affirm his conviction on the burglary charge.
HOBSON, Acting C. J., and DANAHY, J., concur.
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Thomas v. State, 531 So. 2d 708 (Fla. 1988)…52 So. 2d 1048 (Fla. 2d DCA 1984); Hubbell v. State, 446 So. 2d 175 (Fla. 5th DCA), petition for review denied, 453 So. 2d 44 (Fla.1984); Frame v. State, 388 So. 2d 1381 (Fla. 2d DCA), dismissed, 394 So. 2d 1152 (Fla.1980); Preston; Crosby v. State, 352 So. 2d 1247 (Fla. 2d DCA 1977). However, we find that this distinction has injected unnecessary confusion into the legal issues at hand. It requires the trial court to determine at the outset whether a particular tool or device is “common” or not, and to give…1 / 2
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Preston v. State, 373 So. 2d 451 (Fla. 2d DCA 1979)…tention. In the neighborhood in which appellant was apprehended, on the night in question, no burglaries or attempted burglaries were reported or known to have taken place. Relying on Foster v. State, 286 So. 2d 549 (Fla.1973) and Crosby v. State, 352 So. 2d 1247 (Fla. 2d DCA 1977), appellant argues that, since the items in his possession were common household tools, they could not be considered burglary tools in the absence of evidence that any of the items were in fact used as burglary tools. Appellant arg…
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Vinton Gail Hubbell v. State, 446 So. 2d 175 (Fla. 5th DCA 1984)…In support of his position, Hubbell cites three cases: Foster v. State, 286 So. 2d 549 (Fla.1973); overruled on other grounds, Jenkins v. Wainwright, 322 So. 2d 477 (Fla.1975); Preston v. State, 373 So. 2d 451 (Fla. 2d DCA 1979) and Crosby v. State, 352 So. 2d 1247 (Fla. 2d DCA 1977). In Foster, the supreme court held that since the burglary tool statute had the potential to render any number of common household tools illegal, the statute must be construed to require that the tool be used as a burglary tool, t…
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- Foster v. State, 286 So. 2d 549 (Fla. 1973)