Calliar v. State, 97-2021
| Decision Date | 15 July 1998 |
| Docket Number | No. 97-2021,97-2021 |
| Citation | 714 So.2d 1134 |
| Parties | 23 Fla. L. Weekly D1674 Daryell CALLIAR, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Mark E. Walker, Assistant Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Attorney General; J. Ray Poole, Assistant Attorney General, Tallahassee, for appellee.
Daryell Calliar (appellant) challenges the trial court's denial of his motion for judgment of acquittal on charges of possession of burglary tools and resisting arrest without violence. 1 We affirm.
Briefly stated, the evidence presented at trial established that at 12:45 p.m. on December 5, 1996, a middle school physical education teacher observed appellant attempting to cut the chain of a bicycle. The bicycle had been chained to a bicycle rack or stand located within a fenced area of the middle school. Appellant had entered the school premises through an open gate. The teacher used her walkie-talkie to notify the school resource officer. When appellant heard the teacher speaking to the officer, he straightened and slowly walked out of the fenced area. Upon reaching the sidewalk, appellant walked, then ran, down the street.
The teacher gave the school resource officer a description of appellant as the person she saw attempting to steal a bicycle, and advised the officer of the direction taken by appellant when he left the area of the bicycle rack. The officer saw a suspect running down the street who matched the description provided by the teacher. Appellant did not stop running, although the officer had been in uniform and appellant had an opportunity to see him. Instead, appellant changed direction and ran behind a house. As the officer gave chase, appellant discarded items from his person which later were determined to be a screwdriver and a pair of wire cutters. Appellant then turned toward the officer, at which point the officer placed appellant under arrest.
At the close of the state's case, defense counsel moved for judgment of acquittal. The trial court denied the motion, finding the evidence sufficient to present to the jury. The jury found appellant guilty as charged on all offenses charged in the information.
We first address the propriety of the trial court's denial of appellant's motion for a judgment of acquittal on the charge of possession of burglary tools. We are urged to reverse this conviction based on the cases of Hierro v. State, 608 So.2d 912 (Fla. 3d DCA 1992), and Thomas v. State, 531 So.2d 708 (Fla.1988).
We agree, however, with the state's contention that Hierro was wrongly decided, and that the underlying facts in this case support appellant's conviction. Hierro appears to hold that a person who intends to utilize tools to perpetrate a theft during the commission of a burglary cannot be convicted of possession of burglary tools. See Hierro, supra at 915. The analysis in Hierro ignores the fact that the intent to commit the theft at the time of the illegal entry is an element of the crime of burglary. The two charges should not be treated as separate incidents, but rather as one criminal episode with a unified intent. Section 810.06, Florida Statutes (1995), provides in pertinent part that
[w]hoever has in his or her possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree....
Florida Statutes define burglary as follows:
"Burglary" means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein....
§ 810.02(1), Fla. Stat. (1995). Thus, by definition, a burglary tool may be one that a perpetrator intends to use to enable him to gain entry or remain within the premises, or may be a tool which the perpetrator intends to use to commit an offense while within the premises.
Nothing in Thomas mandates reversal in this case. The issue in Thomas was whether a person could be convicted of possession of burglary tools merely by the characteristics of the tools, or whether the intent to use the tool in violation of the statute could only be determined by evidence demonstrating how it was to be used. See Thomas, supra at 709. In the instant case, no such issue exists. Appellant was seen using the tools during the commission of the burglary and the underlying theft. The intent to commit a theft constitutes an essential element of the burglary charge.
We also affirm the denial of appellant's motion for a judgment of acquittal on the charge of resisting arrest without violence. The crime of resisting arrest without violence involves two elements: (1) the officer's articulable well-founded suspicion...
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Hernandez v. State
...of the present case, we note that the First District disagrees with this court's decision in Hierro v. State. See Calliar v. State, 714 So.2d 1134 (Fla. 1st DCA),review granted, 727 So.2d 903 (Fla.1998). The First District reads the burglary tool statute, section 810.06, more broadly than t......
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...without violence is "knowledge [on the part of the defendant] that the officer intended to detain him or her." See Calliar v. State, 714 So.2d 1134, 1135 (Fla. 1st DCA 1998) rev. granted, 727 So.2d 903 (Fla. 1998). In Robinson v. State, 667 So.2d 384 (Fla. 1st DCA 1995), we determined that ......
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Mosley v. State, 98-1502.
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