State v. Hankins, 79-385
| Decision Date | 29 October 1979 |
| Docket Number | No. 79-385,79-385 |
| Citation | 376 So.2d 285 |
| Parties | STATE of Florida, Appellant, v. Michael Joseph HANKINS, Appellee. /T4-415. |
| Court | Florida District Court of Appeals |
Robert Eagan, State's Atty., Orlando, Michael Joseph Barber, Legal Intern, Frank
J. Bankowitz, Asst. State's Atty., Orlando, for appellant.
James R. Dressler, Cocoa Beach, for appellee.
The State appeals from an Order of Dismissal of a count of burglary of a conveyance.
The charge arose as a result of Appellee having been seen removing hubcaps from an automobile. Thus, the question posed is whether or not the simple removal of hubcaps constitutes burglary of a conveyance. The State contends that it does, by virtue of a portion of the definition found in Florida Statute 810.011(2) which reads:
"Conveyance" means any . . . road car, . . ., and "to enter a conveyance" includes taking apart any portion of the conveyance.
We quote with approval the response to the State's position by counsel for Appellee.
The weakness in the State's argument is its failure to incorporate the definition of entering a conveyance into the remainder of the burglary statute. Burglary is defined in Section 810.02(1), Florida Statutes, as:
. . . entering or remaining in a structure or conveyance With the intent to commit an offense therein, . . . (emphasis supplied).
Thus, essential to a Prima facie case of burglary is the allegation of facts in support of defendant's intent to commit an offense Within the structure or conveyance.
In State v. Dalby, 361 So.2d 215 (Fla. 2d DCA 1978), the court stated that ". . . the word 'therein' requires that the offense must be capable of being committed Within the vehicle . . ." Dalby, supra (emphasis supplied). Clearly, the theft of the hubcaps from an automobile wholly fails to establish a Prima facie case of intent "to commit an offense therein", within the meaning of Section 810.02(L ), Florida Statutes. As the Court stated in Porter v. State, 341 So.2d 1017, 1019 (Fla. 2d DCA 1977) (cert. denied, 352 So.2d 173 (Fla.1977)):
See also Mack v. State, 324 So.2d 642, 643 (Fla. 4th DCA 1976).
The gravamen of the offense of burglary, whether of a conveyance or otherwise, is a nonconsensual entry with the intent to commit an offense within; the purpose of the statute is to punish an invasion of the possessory property rights of another in structures and conveyances. Presley v. State, 61 Fla. 46, 48, 54 So. 367, 368 (1911); Holzapfel v. State, 120 So.2d 195, 197 (Fla. 3rd DCA 1960) (cert. denied, State v. Holzapfel, 125 So.2d 877 (Fla.1960)); Vazquez v. State, 350 So.2d 1094 (Fla. 3rd DCA 1977) (cert. denied, State v. Vazquez, 360 So.2d 1250 (Fla.1978)). The definition of "entering a conveyance" in Section 810.011(2) does not obviate the necessity for alleging facts in support of an intent to commit an offense therein. Dalby, supra.
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State v. Office of the Pub. Defender
...to structures and conveyances, and to define prohibited space.” Rodriguez, 101 N.M. at 194, 679 P.2d at 1292(citing State v. Hankins, 376 So.2d 285 (Fla.App.1979) and People v. Davis, 54 Ill.App.3d 517, 12 Ill.Dec. 362, 369 N.E.2d 1376 (1977) (internal quotation marks omitted)). The possess......
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State v. Stephens
...means any motor vehicle, ship, vessel, railroad car, For support for its position, the majority relies upon State v. Hankins, 376 So.2d 285 (Fla. 5th DCA 1979). In Hankins, the defendant was charged with burglary after being observed with hubcaps from an automobile. The question on appeal w......
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Baise v. State, CR-18-0616
...into the engine. Unlike the acts in R.E.S. v. State, 396 So. 2d 1219 (Fla. 1st DCA 1981) (siphoning gasoline) and State v. Hankins, 376 So. 2d 285 (Fla. 5th DCA 1979) (removal of hubcaps), the defendant here, removed something from inside of a conveyance even though he did not lift the hood......
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Baker v. State
...structure. This interpretation is analogous to that placed upon the statute by the Fifth District Court of Appeal in State v. Hankins, 376 So.2d 285 (Fla. 5th DCA 1979), wherein the court affirmed the trial court's dismissal of a charge of burglary of a conveyance on facts showing that the ......