State v. High
| Decision Date | 06 June 1973 |
| Docket Number | No. 42317,42317 |
| Citation | 281 So.2d 356 |
| Parties | STATE of Florida, Petitioner, v. William G. HIGH, Respondent. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for petitioner.
W. Daniel Kearney, Asst. Public Defender, for respondent.
This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Second District, reported at 260 So.2d 549. We have jurisdiction pursuant to Article V, Section 3(b)(3), Fla.Const.F.S.A.
This cause is very similar to State v. Jackson, 281 So.2d 353, our opinion in which is also filed this date. Jackson involved a conviction for breaking and entering a telephone booth with intent to commit a felony. The conviction in the instant case was for entering a telephone booth, without breaking, with intent to commit a misdemeanor. In both cases, the District Court reversed on the grounds that the telephone booths involved were not 'buildings' within the meaning of the burglary statutes and that non-consent to enter the booths had not been established. See our opinion in Jackson for a discussion of the conflicts created by these decisions.
In Jackson we held that a telephone booth enclosed with walls and a ceiling Is a building within the meaning of our burglary statutes. Nevertheless, we affirmed the District Court's reversal of the convictions in Jackson on the issue of non-consent to enter. While non-consent is not an 'element' of a crime of breaking and entering with felonious intent, it is inherent in the common law concept of a 'breaking'. A breaking is the actual or constructive use of some force against a part of a building in effectuating an Unconsented entry. See 12 C.J.S. Burglary § 11.
In the instant case, however, the issue of consent or non-consent to enter is irrelevant. Respondent was convicted of entering Without breaking with intent to commit a misdemeanor, as prohibited by Fla.Stat. § 810.05, F.S.A. By so changing the common law burglary definition, the Legislature has removed the requirement that an entry be unconsented or unlawful in any way, except as it becomes unlawful by reason of the intent of the person entering.
We have not had occasion to consider this question before, but several other courts have. Generally, other courts have also held that consent to enter is irrelevant under statutes proscribing 'entry' with wrongful intent. See 93...
To continue reading
Request your trial
-
State v. Plumley
...v. Embree, 130 Ariz. 64, 633 P.2d 1057 (App.1981); People v. Nunley, 168 Cal.App.3d 225, 214 Cal.Rptr. 82 (1st Dist.1985); State v. High, 281 So.2d 356 (Fla.1973); Thomas v. State, 94 Nev. 605, 584 P.2d 674 (1978). See Annot., 58 A.L.R.4th 335 (1987) and cases cited.5 "The common law defini......
-
Ray v. State
...is, "the actual or constructive use of some force against a part of a building in effecting an unconsented entry," State v. High, 281 So.2d 356, 357 (Fla.1973) (emphasis in original)--meant that the initial entry had to be trespassory. As Professor LaFave notes, "[t]he law was not ready to ......
-
State v. Thibeault
..."the actual or constructive use of some force against a part of a building in effectuating an Unconsented entry." State v. High, 281 So.2d 356, 357 (Fla.1973). (emphasis in original.) That the initial entry must be trespassory 2 was established in Maine in State v. Newbegin, 25 Me. 500 (184......
-
State v. Blair
...with intent, to render consent irrelevant in a case where the defendant entered a telephone booth and pried open the coin box. State v. High, Fla., 281 So.2d 356. But see Skov v. State, Fla.App., 292 So.2d 64. A similar result obtained in State v. Gregor, 11 Wash.App. 95, 521 P.2d 960, wher......