Ferguson v. State

404 So. 2d 179, 1981 Fla. App. LEXIS 21208

Opinion

SCHWARTZ, Judge.

The defendant was convicted and sentenced both for burglary of a conveyance and possession of a burglary tool, a common screwdriver, which was used in the break-in. We think that the propriety of the dual adjudications and sentences, the sole issue on appeal, has been established by the recent decision in State v. Hegstrom, 401 So.2d 1343 (Fla.1981). By receding from State v. Pinder, 375 So.2d 836 (Fla.1979), Hegstrom simultaneously demonstrated the correctness of the rationale and result in Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981), which is identical to this case and, as is shown by the first district’s certification of the Pinder issue, which it considered controlling, the /«correctness of that court’s directly contrary conclusion in Cantrell v. State, 405 So.2d 986 (Fla. 1st DCA 1981).

Since we agree with both Cantrell and Borges that possession of burglary tools— even when they are common household items — is not a lesser included offense of burglary, contra, Humphreys v. State, 388 So.2d 607, n.1 (Fla. 2d DCA 1980), Section 775.021(4), Florida Statutes (1979), which, under Hegstrom, entirely controls the present issue, requires that the judgments and sentences under review be

Affirmed.