Miller v. State, s. 82-8

• Decision Date: 17 September 1982
• Docket Number: 82-14,82-11,82-10,82-13,Nos. 82-8,82-12,82-9,s. 82-8
• Citation: 420 So.2d 631
• Parties: James R. MILLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 631

420 So.2d 631

James R. MILLER, Appellant, v. STATE of Florida, Appellee.

Nos. 82-8, 82-14, 82-9, 82-10, 82-11, 82-12, 82-13.

District Court of Appeal of Florida Second District.

Sept. 17, 1982.

Rehearing Denied Oct. 17, 1982.

Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.

GRIMES, Acting Chief Judge.

This is an appeal from the revocation of seven orders of probation which resulted in sentences consecutively totalling one hundred fourteen years of imprisonment.

Appellant was charged with violating his probation by committing the offense of attempted burglary. The evidence at the revocation hearing established that appellant and his two companions left their car beside the road with the hood raised. The three men walked to a nearby house allegedly to use the telephone to call a wrecker. One of the men, Hunnicutt, walked up to the house and knocked on the door. Joyce Brill, who was inside, did not answer because she thought he might be a "solicitor." Hunnicutt walked towards the rear of the house with a crowbar in his hand. Brill then heard her garage door being opened. The garage was attached to the house, and there was a door from the interior of the garage into the house. Brill also heard her dog barking and saw him rolling down the driveway as if he had been kicked. She began screaming for help. Hunnicutt ran through a wooded area where he was joined by the appellant and the third person.

The police later stopped the three men at a nearby shopping center. Appellant told one of the officers that after his car broke down they had walked in a westerly direction, which was away from Brill's house, and he denied having been in the woods. At the hearing, appellant said he had lied to the officers because he was afraid that the incident might affect his probationary status. He testified that he never got closer than ten feet from Brill's house and that he had no intention of burglarizing it or helping anyone else do so. A policeman stated that he was able to crank up appellant's car without any trouble. Appellant's father-in-law, who was an auto mechanic, testified that appellant's car had a mechanical problem whereby it would stall and refuse to start until it sat for about fifteen minutes. He said that this had occurred about thirty times in the last six months.

Clearly, the evidence presented at the revocation hearing would not have supported appellant's conviction for attempted burglary. In R.W.G. v. State, 395 So.2d 1279 (Fla. 2d DCA 1981), this court reversed a burglary conviction for insufficiency of evidence. The accused juvenile was outside the premises being burglarized. Even though he knew what his companions were doing, he contended that he had refused to participate in the crime. We held that the evidence presented was not inconsistent with a reasonable hypothesis of innocence. Likewise, in Morgan v. State, 355 So.2d 149 (Fla. 1st DCA 1978), the court held that flight from an actual burglary scene even with pliers and a screwdriver was insufficient to support a...