Hicks v. State

• Decision Date: 02 December 1981
• Docket Number: No. 80-1115,80-1115
• Citation: 407 So.2d 252
• Parties: Carlos Wayne HICKS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 252

407 So.2d 252

Carlos Wayne HICKS, Appellant, v. STATE of Florida, Appellee.

No. 80-1115.

District Court of Appeal of Florida, Fifth District.

Dec. 2, 1981.

James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, and Julianne Piggotte, Certified Legal Intern, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.

ORFINGER, Judge.

Appellant challenges his conviction for burglary of a dwelling on the ground, among others, that the trial court erred in not granting his motion to dismiss the information based on the specific ground that it failed to allege that appellant's entry into the dwelling was without the consent of the owner or occupier. ¹ On this point, the issue is whether a non-consensual entry is a necessary element of the crime of burglary which must be alleged and proved by the State, or whether consent is a matter of defense to be raised and proved by defendant. We hold that under the current burglary statute, non-consent to the entry is an essential element of the crime which must be alleged and proved by the State.

Section 810.02(1), Florida Statutes (1979), defines the crime of burglary as:

"Burglary" means entering or remaining in a structure or 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.

In State v. Thompson, 390 So.2d 715 (Fla.1980), the Supreme Court confirmed the rule of construction asserted in Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890), as follows:

In a statutory offense, it depends very much, though not exclusively, on the words of the statute, whether a particular matter is one of defense, or whether the negative of the matter enters into the definition of the crime. Therefore, as a general rule, we have what has already been laid down, namely, "if there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception: but, if there be an exception in a subsequent clause, or subsequent statute, that is a matter of defense, and is to be shown by the other party."

Baeumel, 7 So. at 372.

In Baeumel, the statute in question required all dealers in "spirituous, vinous or malt liquors" to pay a fee and secure a license before engaging in such sales, and all persons who sold such beverages were deemed dealers within the meaning of the act. There then followed a proviso that druggists could use such liquors in the preparation of prescriptions without being required to have such license. A defendant charged with violating the statute argued unsuccessfully that in order to charge him with a crime under the statute it was necessary for the State to allege and prove that he was not a druggist, but the trial court held and the supreme court agreed that

The enacting clause of the act ... under which plaintiff in error was convicted contains no exception or provision as to druggists, and therefore it was not necessary for the indictment to allege that the accused was not, at the time of the alleged sales, a druggist...

Id. at 373.

In Thompson, the court applied the same principle to section 790.221, Florida Statutes (1977), the statute proscribing possession of short barrelled rifles, short barrelled shotguns or machine guns, and held that the antique firearm exception in the statute was a matter of defense, rather than a necessary element of the crime to be alleged and proved by the State, ² because of the placement of the exception language in the statute.

Applying the simply stated but difficult to apply rule to the issue at hand, we discern that in the current statute, the legislature has made the element of non-consent a part of the "enacting clause." Section 810.02(1) states the legislative definition of burglary, and that definition includes the phrase "... unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain." If we eliminate this language in identifying the crime, we use only part, but not all, of the statutory definition. ³

Prior to 1974, the burglary statute required a breaking and entering. Under that statute, the Supreme Court held that non-consent of the owner of the building was not an element of the crime, although it defined the element of "breaking" as the actual or constructive use of force in effectuating an unconsented to entry. State v. Jackson, 281 So.2d 353 (Fla.1973). Thus, even under that statute, non-consent to enter was inferentially alleged when the information charged a "breaking," and had to be proved by either direct or circumstantial evidence.

When the legislature adopted the current statute, it eliminated "breaking" as an element, but it did not eliminate non-consent as a necessary ingredient of the crime. Under the old statute, the allegation in an information that a defendant did "break and enter" of necessity was an allegation that the entry was without consent. With the elimination of "breaking" as an element of the crime, the legislature placed the still present ingredient of non-consent into the statutory definition as an element of the crime. Whereas under the old statute non-consent was in effect alleged when a "breaking" was alleged, with "breaking" no longer required, it is necessary to directly allege the element of non-consent. ⁴

An information must allege each of the essential elements of a crime to be valid; no essential element should be left to inference. State v. Dye, 346 So.2d 538 (Fla.1977). Since the information omitted an essential element of the crime of burglary, which omission was specifically raised in the motion to dismiss, the court erred in not dismissing the information.

Since we hold that the motion to dismiss the information should have been granted, we need not discuss appellant's remaining points on appeal. The judgment of conviction is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., J. concurs.

COWART, J., dissents with opinion.

COWART, Judge, dissenting:

The crime of burglary is defined by section 810.02(1), Florida Statutes (1979):

"Burglary" means entering or remaining in a structure or 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.

Sections 810.02(2) and (3) declare that this crime is punishable as a third degree felony or, if additional elements are alleged and proved, authorize more serious penalties to be imposed.

The majority holds that the State is required to allege and prove in its case in chief nonconsent to enter the premises. I would hold that consent is an affirmative defense, to be raised by the defendant.

Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890), states the correct test (I)f there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause, or subsequent statute, that is matter of defense, and is to be shown by the other party.

Id. at 372. (emphasis added).

The supreme court recently applied this test in State v. Thompson, 390 So.2d 715 (Fla.1980), ¹ to determine whether, in the crime of possession of a short-barreled shotgun, the State was required to allege and prove that the shotgun was not antique. The statute, in pertinent part, provided:

It is unlawful for any person to own or have in his care, custody, possession, or control any short-barreled rifle, short-barreled shotgun, or machine gun which is, or may readily be made, operable; but this section shall not apply to antique firearms.

§ 790.221(1), Fla.Stat. (1977).

The court, relying on the above emphasized language in the Baeumel test, held that the antique firearm exception was contained in a clause ² separate from the enacting language, and thus established a defense, the burden of which was on the defendant to raise.

The burglary statute defines the crime as entering or remaining with the requisite intent, "unless ... the defendant is licensed or invited to enter or remain." The issue of consent is treated in a separate clause from the enacting language of the statute and under the analysis of Baeumel, Thompson and other cases, should therefore be considered an affirmative defense and not a fact to be negated by the State in its pleading and proof.

While, as the majority observes in footnote 3, the word "unless" is a conjunction joining a subordinate adverbial clause to the rest of a sentence it is also one of a group of conjunctions, common in law, which qualifies the main sentence. Other such words are "as long as" (as used in language describing any contractual condition subsequent), "provided, however," "but," "except" and "subject to." These terms are usually found where the main sentence broadly states or creates rights or duties in favor of one potential group of litigants (protagonists) which can be expected to be asserted against another group of litigants (antagonists), while the qualifying clause or phrase defines excluded or excepted matters which can be expected to be asserted by the antagonists as a limitation on the rights stated broadly in the main sentence in favor of their opponents.

Aside from pure statutory construction, the essential question involved in determining whether the State should be required in the first instance to allege and prove nonconsent, or whether the question of consent should be left for the defendant to raise as an affirmative defense or matter in avoidance, is one of proper apportionment of the task of adducing evidence or allotting the burden of proof. Since the State must prove as part of its case in chief that the accused's act of entering or remaining in the structure was wrongful in that it was "with the intent...