Green v. State, No. 90-1996

CourtCourt of Appeal of Florida (US)
Writing for the CourtMINER; BOOTH, J., concurs and ALLEN; ALLEN
Citation591 So.2d 965
Docket NumberNo. 90-1996
Decision Date09 December 1991
Parties16 Fla. L. Weekly D3035 Anthony E. GREEN, Appellant, v. STATE of Florida, Appellee.

Page 965

591 So.2d 965
16 Fla. L. Weekly D3035
Anthony E. GREEN, Appellant,
v.
STATE of Florida, Appellee.
No. 90-1996.
District Court of Appeal of Florida,
First District.
Dec. 9, 1991.

Page 966

Nancy Daniels, Public Defender, and Lynn A. Williams, Asst. Public Defender, Tallahassee., for appellant.

Robert A. Butterworth, Atty. Gen., and Laura Rush, Asst. Atty. Gen., Tallahassee., for appellee.

MINER, Judge.

Appellant here seeks review of his conviction and sentences for burglary of a dwelling and possession of burglary tools. Of the several grounds for reversal urged on appeal, we find only one merits discussion. Appellant contends that the trial court erred in its refusal to enter a judgment of acquittal on the charge of possession of burglary tools based on the appellant's possession of gloves when apprehended. Finding that the trial court did not err in this respect, we affirm appellant's conviction and sentences.

At trial, the victim testified that she discovered a burglary in progress at her dwelling during the early morning hours, and telephoned for emergency assistance. When responding officers arrived they observed the appellant running from the area. An officer identified himself and confronted the appellant who stopped but then began running again. The officer eventually caught the appellant and testified that appellant said, "You got me. I give up ... I did it." The officer indicated that the temperature was in the 50's or 60's and that the appellant was wearing gloves on his hands which he appeared to be attempting to shake off by "slinging".

At the conclusion of the state's case, the appellant argued that the state did not make a prima facie case that the gloves he was wearing were "a burglary tool." He argued that the evidence did not show that he was using the gloves to commit a burglary, rather than to merely avoid detection. He also maintained that gloves are not within the statutory definition of a "tool, machine, or implement" pursuant to section 810.06, Florida Statutes.

On appeal, appellant argues that the state did not establish that he intended to use the gloves found in his possession to commit a burglary. He contends that no one saw him wearing the gloves during the burglary and that the state's failure to obtain any clear fingerprints is not dispositive. In a word, he maintains that gloves are not a burglary "tool, machine, or implement."

The state argues that common objects may be burglary tools, depending on the context in which they are used. The state further asserts that the evidence adduced below establishes that the appellant was using the gloves with the intention of committing a burglary.

The most common usage of the terms "tool, machine, or implement" does not relate to gloves or other articles of clothing. In Commonwealth v. Purcell, 19 Mass.App.Ct. 1031, 477 N.E.2d 190, rev. den. 395 Mass. 1103, 481 N.E.2d 197 (1985), a Massachusetts court recognized some uncertainty in that state's case law, but determined that it was not bound to follow precedent which suggested that gloves were not "burglarious" implements. Unlike section 810.06, Florida Statutes, the Massachusetts statute prohibits the possession of only those implements which are "adapted and designed for cutting through, forcing or breaking open a building," etc.

Page 967

Numerous cases under various statutes in other states have included gloves with other objects when describing the defendant's possession of burglary tools. See 33 ALR 3d 798, Sec. 14[a]. In Broughton v. State, 528 So.2d 1241 (Fla. 1st DCA 1988), this court reversed the conviction for the possession of burglary tools because it was not shown that the defendant was attempting to use the objects to commit a burglary. Although a glove and a ski mask were among the "tools" which the defendant was charged with possessing, it was not necessary for the court in Broughton to address whether section 810.06, Florida Statutes could be violated by the possession of a glove.

Webster's Third New International Dictionary defines implement as "an article (as of apparel or furniture) serving to equip." This definition would encompass gloves as an implement which may be used in connection with the burglary, insofar as gloves are an item of apparel which may equip one to commit a burglary. In Moore v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968), cert. den. 393 U.S. 1063, 89 S.Ct. 714, 21 L.Ed.2d 705 (1969), the Arkansas Supreme Court affirmed a conviction for possession of burglary tools which included a pair of rubber gloves. In considering the particular combination of tools or implements the court suggested it is common knowledge that burglars use gloves to avoid...

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1 practice notes
  • Green v. State, No. 79183
    • United States
    • United States State Supreme Court of Florida
    • 27 Agosto 1992
    ...Rush, Asst. Atty. Gen., Tallahassee, for respondent. McDONALD, Justice. Anthony Green petitions this Court to review Green v. State, 591 So.2d 965, 967 (Fla. 1st DCA1991), in which the district court certified the following question as being of great public Are items of personal apparel, su......
1 cases
  • Green v. State, No. 79183
    • United States
    • United States State Supreme Court of Florida
    • 27 Agosto 1992
    ...Rush, Asst. Atty. Gen., Tallahassee, for respondent. McDONALD, Justice. Anthony Green petitions this Court to review Green v. State, 591 So.2d 965, 967 (Fla. 1st DCA1991), in which the district court certified the following question as being of great public Are items of personal apparel, su......

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