Drew v. State

773 So. 2d 46, 2000 WL 1675969
CourtSupreme Court of Florida
DecidedNovember 9, 2000
DocketSC95785
StatusPublished
Cited by12 cases

This text of 773 So. 2d 46 (Drew v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drew v. State, 773 So. 2d 46, 2000 WL 1675969 (Fla. 2000).

Opinion

773 So.2d 46 (2000)

Terrell Curtis DREW, Petitioner,
v.
STATE of Florida, Respondent.

No. SC95785.

Supreme Court of Florida.

November 9, 2000.

Paula C. Coffman, Orlando, Florida, for Petitioner.

Robert Butterworth, Attorney General, Robert J. Krauss, Senior Assistant Attorney General, and Johnny T. Salgado, Assistant Attorney General, Tampa, Florida, for Respondent.

ANSTEAD, J.

We have for review Drew v. State, 736 So.2d 1188 (Fla. 2d DCA 1999), based on certified direct conflict with the decision in State v. Hankins, 376 So.2d 285 (Fla. 5th DCA 1979). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. At issue in this case is whether the act of removing hubcaps or tires from a vehicle in and of itself constitutes a burglary. The Second District in Drew (tires) and State v. Word, 711 So.2d 1240 (Fla. 2d DCA 1998) (tires) held that there was a burglary while the Fifth District in Hankins (hubcaps) held there was not. Based on the purpose and history of the offense of burglary at common law and our interpretation of the burglary statute, we hold that the sole act of removal of hubcaps or tires from a motor vehicle, while clearly constituting an act of criminal larceny, does not constitute a burglary.

*47 FACTS

On July 14, 1997, at approximately 11 p.m., Polk County Sheriffs Deputy James Orgic observed Terrell Curtis Drew and his codefendant, Willie D. Wright, in the vicinity of Mack Lewis Auto Sales. Orgic testified that Drew was carrying a lug wrench at the time and was using it to remove lug nuts from a vehicle. Drew admitted that he took the lug nuts from a brownish-red Chevrolet parked behind the Auto Sales business and that with the assistance of his codefendant, he had removed the missing tires from the car.[1] Subsequently, Drew and Wright were charged by information with petit theft, possession of burglary tools, and burglary of a conveyance in violation of sections 812.014(3), 810.06 and 810.02(4), Florida Statutes (1997), respectively. Drew filed a motion to dismiss the burglary and possession of burglary tools charges, asserting that the undisputed material facts as set out above did not constitute a prima facie showing of guilt on these charges. The trial court denied this motion and the case proceeded to trial. At trial, Drew did not dispute that he had removed tires from the car. Instead, his attorney contended that on these facts, Drew could not be found guilty of burglary or of possession of burglary tools.[2]

After the State rested its case, Drew moved for a judgment of acquittal and again specially argued that the counts of burglary and possession of burglary tools did not apply to these circumstances. This motion was denied and the jury returned guilty verdicts on all three of the offenses charged. Drew was adjudicated guilty and sentenced to 364 days in the county jail for the burglary charge with credit for time served, 364 days in the county jail for the possession of burglary tools charge, and to time served for the petit theft, all such sentences to run concurrent with each other. Drew appealed to the Second District, and his conviction and sentence were per curiam affirmed on the authority of the court's prior decision in Word that the removal of tires from a motor vehicle constituted a burglary.

BURGLARY

At common law, burglary was defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein. See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.13, at 464 (1986). The underlying purpose of the crime of burglary was to punish the forcible invasion of a habitation and violation of the heightened expectation of privacy and possessory rights of individuals in structures and conveyances. See Presley v. State, 61 Fla. 46, 48, 54 So. 367 (1911). As Sir William Blackstone once explained: "[burglary] has always been looked upon as a very heinous offense: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion of that right of habitation, which every individual might acquire in a state of nature." 4 William Blackstone, Commentaries on the Laws of England 223 (1769).

In 1962, a definition of burglary was approved by the drafters of the Model Penal Code that closely resembled the common law crime:

(1) Burglary Defined. A person is guilty of burglary if he enters a building *48 or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. It is an affirmative defense to prosecution for burglary that the building or structure was abandoned.

Model Penal Code, § 221.1(1), at 60-61 (1980). The commentary to this section explains that this definition attempted to restate the original reach of the crime:

The needed reform [of the offense of burglary] should take the direction of narrowing the offense to reflect more appropriately the distinctive situation for which it was originally derived. The offense has thus been limited in the Model Code to the invasion of premises under circumstances especially likely to terrorize occupants. Most of the extensions of the offense that have been added by legislation over the years have been discarded.

Model Penal Code, § 221.1 cmt. 2, at 67.

FLORIDA BURGLARY

Of course, burglary of a conveyance was unknown at common law and is not included as part of the 1962 Model Penal Code definition of burglary as set out above. Rather, burglary of a conveyance is a creature of statute. In Florida, burglary is defined in a way largely consistent with the Model Penal Code but expanded to include conveyances:

Burglary means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

§ 810.02(1), Fla. Stat. (1997). Section 810.011(3), Florida Statutes (1997), defines conveyance as "any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car." In addition, "`to enter a conveyance' includes taking apart any portion of the conveyance." § 810.011(3), Fla. Stat. (1997).

This Court construed the statutory definition of entry of a conveyance in Von Edwards v. State, 377 So.2d 684 (Fla.1979), and, based upon that construction, rejected a claim that the statutory definition of burglary was unconstitutionally vague or overbroad. In rejecting the claim of overbreadth we accepted the State's proffered interpretation of the statute:

The state responds that the word "therein" in section 810.02(1) requires that when the entering of a conveyance is committed, there must be an intent to commit an offense "therein," citing State v. Dalby, 361 So.2d 215 (Fla. 2d DCA 1978). Thus, the legislative intent is that the removal of a portion of the conveyance must be to facilitate the commission of an offense within the conveyance. Thus the statute does not seek to punish as burglary conduct which should be treated as larceny. We agree.

Id. at 685 (emphasis supplied).

Subsequently, in State v. Stephens, 601 So.2d 1195 (Fla.1992), we held that burglary of a conveyance can be proven even when the underlying offense intended to be committed is the stealing of the conveyance itself. See id. at 1196.

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Bluebook (online)
773 So. 2d 46, 2000 WL 1675969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drew-v-state-fla-2000.