Foster v. State

Decision Date05 December 1973
Docket NumberNo. 43931,43931
Citation286 So.2d 549
PartiesWillie Clyde FOSTER, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for petitioner.

Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, reported at 276 So.2d 512. Our jurisdiction is based on conflict between the decision sought to be reviewed and Yost v. State 1 and Cone and Sanders v. State. 2

The facts of the case are as follows:

Petitioner, defendant below, was charged, by information, with breaking and entering with intent to commit a felony, and with possession of burglary tools. Following a hearing on petitioner's motion to suppress the evidence, the trial court granted the motion as it related to certain wire cutters, but denied it as to a certain screwdriver. At the conclusion of the trial, the jury returned a verdict, finding petitioner guilty of both counts as charged, and subsequently, petitioner was adjudged guilty and sentenced to fifteen years imprisonment on the first count, and five years imprisonment on the second count, the sentences to run concurrently.

In its opinion, the District Court of Appeal, First District, held as follows:

'Appellant contends, Inter alia, that the court erred in imposing concurrent sentences for the two offenses since each count involved but a facet or phase of the same transaction. In support of his contention, appellant cites Yost v. State, 243 So.2d 469 (Fla.App.1971), in which the defendant was convicted and sentenced on two separate counts of possession and sale of marijuana. The court in Yost held that where an information contains more than one count but each is a facet of the same transaction, only one sentence may be imposed. The principle enunciated in Yost was adopted by this court in Walker v. State, 261 So.2d 514 (Fla.App.1972). Subsequent to Yost and Walker, the Supreme Court recently decided Cone and Sanders v. State, 285 So.2d 12 (Opinion filed March 7, 1973). In Cone and Sanders, the court held that armed robbery and displaying or using a firearm during the commission of a felony were a facet of the same transaction and, therefore, sentence could only be imposed on the higher offense. Cone and Sanders and Yost are distinguishable from the case at bar.' 3

The First District then proceeded to 'distinguish' these two prior cases from the instant case. It would appear, however, that distinctions made by the court are highly questionable, at best. The First District noted:

'As to Yost, it is a logical consequence of being guilty of sale to be also guilty of possession, for one cannot sell something without first possessing it. They are facets of the same transaction. Likewise in Cone and Sanders, one cannot be found guilty of using a firearm during the commission of a felony unless one is in fact committing a felony. The two crimes are an indivisible transaction punishable under two statutes. However, in the case at bar, possession of burglary tools and breaking and entering with intent to commit a felony, although related crimes, are not facets of the same transaction. One may be guilty of possessing burglary tools and not be guilty of breaking and entering.' 4

What the court has done in this case, however, is to look at the Yost case and the Cone and Sanders case in one perspective, and to look at the instant case in an entirely different perspective.

Reversing the perspective of the three cases, and looking first at Yost, it certainly can be said that one can be convicted of possession of marijuana without being convicted of the sale of marijuana. Applying the same reverse perspective to Cone and Sanders, it certainly can be said that one can be convicted of displaying or using a firearm during the commission of a felony without being convicted of armed robbery. Finally, reversing our perspective, and looking at the instant case (and noting the facts of the instant case, i.e., that the 'burglary tool' which petitioner was convicted of possessing was, in fact, a simple screwdriver), it can hardly be said that the petitioner could have been convicted of possession of burglary tools, in this case Only a screwdriver, had he not been participating in a breaking and entering. Dissenting Judge Johnson in the instant case made just such an observation:

'In this case, in moments after the appellant, defendant below, was seen entering or allegedly entering the rooms, and while waiting for the police to arrive, the screwdriver apparently fell from appellant's clothes. The testimony to bolster the State's case of breaking and entering was to the effect that this particular screwdriver, with blue paint from the room doors still on it, was the one being used by the appellant in trying to break open the room doors. The very testimony of the State's witnesses conclusively proves that the use of the same screwdriver was tied into the same criminal episode and therefore the same was a facet of the single transaction and falls directly within the holding of the Supreme Court of Florida in the case of Cone and Sanders v. State of Florida . . .. In the case, sub judice, the screwdriver was being used in the breaking and entering. Without the screwdriver, based on the evidence, there could or would not have been any breaking or entering under the facts of this case. Therefore, while I think the evidence was sufficient to support the guilty verdict, it was error for the trial...

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34 cases
  • D.P. v. State, 96-3289
    • United States
    • Court of Appeal of Florida (US)
    • December 10, 1997
    ...application to entirely innocent activities ... so as to create prohibitions that completely lack any rational basis"); Foster v. State, 286 So.2d 549, 551 (Fla.1973) (prohibiting punishment of possession of a simple screwdriver as being a burglary tool, without any showing of criminal inte......
  • Thomas v. State
    • United States
    • United States State Supreme Court of Florida
    • August 18, 1988
    ...... Second, it opens the door for the abusive or pretextual arrest of persons merely found to possess common household items.         Previously we attempted to deal with these problems in Foster v. State, 286 So.2d 549 (Fla.1973), receded from on other grounds, Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975), by drawing a distinction between common household items and devices that are per se burglary tools. This conclusion subsequently was embodied in the standard jury instruction. See ......
  • Borges v. State
    • United States
    • United States State Supreme Court of Florida
    • April 8, 1982
    ...Ray, 331 So.2d 316 (Fla.1976); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); Estevez v. State, 313 So.2d 692 (Fla.1975); Foster v. State, 286 So.2d 549 (Fla.1973); Cone v. State, 285 So.2d 12 (Fla.1973); Williams v. State, 337 So.2d 1038 (Fla. 1st DCA 1976), aff'd, 346 So.2d 67 (Fla.1977......
  • Jenkins v. Wainwright
    • United States
    • United States State Supreme Court of Florida
    • July 2, 1975
    ...In addition, we note that previous decisions of this Court have been cited as adopting the single transaction rule. E.g., Foster v. State, 286 So.2d 549 (Fla.1973); Cone v. State, 285 So.2d 12 (Fla.1973); Williams v. State, 69 So.2d 766 (Fla.1954). It is the respondent's position that the t......
  • Request a trial to view additional results
1 books & journal articles
  • Proxy crimes
    • United States
    • American Criminal Law Review No. 59-1, January 2022
    • January 1, 2022
    ...broadly def‌ined possession of burglary tools without any need to prove ulterior intent unconstitutional. See, e.g. , Foster v. State, 286 So. 2d 549, 551 (Fla. 1973) (stating that the Florida statute criminalizing the possession of burglary tools cannot be construed to cover the possession......

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