Hubbell v. State, 82-1604

• Decision Date: 02 February 1984
• Docket Number: No. 82-1604,82-1604
• Citation: 446 So.2d 175
• Parties: Vinton Gail HUBBELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 175

446 So.2d 175

Vinton Gail HUBBELL, Appellant, v. STATE of Florida, Appellee.

No. 82-1604.

District Court of Appeal of Florida,

Fifth District.

Feb. 2, 1984.

Rehearing Denied March 7, 1984.

James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.

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

FRANK D. UPCHURCH, Jr., Judge.

Vinton Hubbell appeals from a judgment and sentence for attempted burglary and possession of burglary tools.

The facts in this case are relatively simple. On May 29, 1982, at about 2:00 a.m., two officers were dispatched to an auto glass store in response to a burglar alarm. They discovered a broken window and some fresh wood chips which appeared to come from the rear door. Outside, about six feet from the door was some fencing material with a person behind it. After their requests to come out were ignored, the officers pulled down the fencing and found Hubbell. At his feet was a piece of pipe.

As his first point on appeal, Hubbell contends that the evidence was insufficient to sustain a conviction for attempted burglary. We disagree and affirm. See Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967).

Hubbell's second point on appeal concerns the sufficiency of the evidence to sustain the conviction for possession of burglary tools. Hubbell was not observed breaking the door or prying open the door. No fingerprints were found on the pipe. There was no direct evidence to show that the pipe was used in the burglary. The most incriminating thing that can be said about the pipe is that it was in the immediate vicinity of Hubbell at the time of his apprehension.

Hubbell contends that his motion for judgment of acquittal should have been granted because the state produced no evidence that he ever possessed the pipe, that the pipe was a burglary tool, or that it was ever used by him as such. In support of his position, Hubbell cites three cases: Foster v. State, 286 So.2d 549 (Fla.1973); overruled on other grounds, Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); Preston v. State, 373 So.2d 451 (Fla. 2d DCA 1979) and Crosby v. State, 352 So.2d 1247 (Fla. 2d DCA 1977). In Foster, the supreme court held that since the burglary tool statute had the potential to render any number of common household tools illegal, the statute must be construed to require that the tool be used as a burglary tool, thus becoming a facet of the breaking and entering transaction. In that case, a screwdriver fell out of the defendant's clothes after he was seen entering a room. The screwdriver had blue paint from the room doors still on it. The conviction for possession of burglary tools was upheld although the sentence imposed was vacated on double jeopardy grounds.

In Preston, the defendant was spotted crouching behind a bush in the early morning hours by law enforcement officers. When officers approached, the defendant fled. During the ensuing chase, he dropped a sock containing two ice picks, a knife, a screwdriver, and a flashlight. On appeal, the Second District vacated the judgment and sentence for possession of burglary tools since there was no evidence that the defendant intended to use the household tools to commit a burglary or that the items were actually used as such.

In Crosby, the defendant was convicted of burglary and possession of burglary tools. At trial, the prosecution presented evidence to...