State v. Jackson
| Decision Date | 06 June 1973 |
| Docket Number | No. 42320,42320 |
| Citation | 281 So.2d 353 |
| Parties | STATE of Florida, Petitioner, v. Bennie JACKSON and Henry Fisher, Respondents. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., and Charles Corces, Jr., Asst. Atty. Gen., for petitioner.
W. Daniel Kearney, Asst. Public Defender, for respondents.
This case is before us on a petition by the State of Florida for a writ of certiorari to the District Court of Appeal, Second District. Since the opinion of the District Court in this cause, reported at 259 So.2d 739, conflicts with Perry v. State, 174 So.2d 55 (1st D.C.A.Fla.1965), and Tavalaccio v. State, 59 So.2d 247 (Fla.1952), we have jurisdiction. Article V, § 3(b)(3), Florida Constitution, F.S.A.
Respondents, Jackson and Fisher, were convicted of breaking and entering a building, specifically a telephone booth, with intent to commit a felony therein, in violation of Fla.Stat. § 810.02, F.S.A. The District Court reversed on the grounds that '(1) the record did not establish that the 'phone booth' was a 'building' within the meaning of the applicable statute, and (2) an indispensable element in the charge of breaking and entering, namely, the non-consent of the owner, was not established.'
In Perry v. State, Supra, the First District Court upheld multiple convictions of entering without breaking 'a certain building, to-wit: a telephone booth' with intent to commit a misdemeanor. The Court held that the telephone booths involved, shown to have been located 'outdoors, not within another building,' were themselves buildings within the meaning of the applicable statute. The decision in the case sub judice does not, in precise terms, conflict with Perry, but in the opinion now before us the District Court explained, obiter dictum, that in its view a telephone booth was not a building within the meaning of the statute whether located indoors or out. This is the type of obiter dictum which creates conflict. See Southern Realty & Utilities Corp. v. Belmont Mortgage Co., 186 So.2d 24 (Fla.1966).
In Perry, the First District Court thoroughly analyzed several definitions of the word 'building'. We think it correctly concluded that a telephone booth which is enclosed with walls and a roof and which is located outdoors is a building within the meaning of our burglary statutes. See also 78 A.L.R.2d 778. The record in the instant case establishes that the telephone booth involved is of this type. It is, therefore, a building which may be unlawfully broken and entered under certain circumstances.
In this case, however, the District Court properly reversed respondents' convictions because it was not established that the breaking and entering of the telephone booth amounted to a trespass. See Jenkins v. State, 58 Fla. 62, 50 So. 582 (1909). Where the one entering a building has permission to enter, either express or implied, there is no trespass and, therefore, no breaking and no burglary. Cannon v. State, 102 Fla. 928, 136 So. 695 (1931); see 12 C.J.S. Burglary §§ 10--12.
The conflict with Tavalaccio v. State, supra, lies not in the result reached by the District Court, but in its characterization of non-consent of the owner of the building as an element of the crime charged. We have often stated, as in Tavalaccio, that the elements of a statutory burglary of this type are (1) the breaking and (2) the entering of a building with (3) the intent to commit a felony therein. Non-consent is not, per se, an element of the crime; the element of 'breaking' however, means 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.
When the crime charged is breaking and entering with intent to commit larceny, we have held that non-consent to the alleged taking intended may be established by circumstantial evidence. Johnson v. State, 157 Fla. 328, 25 So.2d 801 (1946). Non-consent to entry of the building may also be established in this manner. In the case at bar, however, the evidence presented at trial showed nothing other than a public telephone booth impliedly open to anyone at any hour, and no unusual circumstances were proven. For a building of this type to be unlawfully broken and entered, the implied consent to enter must be negated--for example, by proving that the telephone booth was out-of-order and padlocked.
Since non-consent to enter was not established in this case, the reversal of respondents' convictions for breaking and entering with intent to commit a felony is hereby affirmed. The opinion of the District Court of Appeals, Second District, is modified, however, as indicated herein.
It is...
To continue reading
Request your trial
-
Leary v. State, 5D03-3268.
...owners of the motel in 1999, because he was the guest or invitee of Glover, a paying guest and a lessee of a room. See State v. Jackson, 281 So.2d 353, 354-355 (Fla.1973); L.D.L. v. State, 569 So.2d 1310, 1312-1313 (Fla. 1st DCA 1990). We do not need to reach that question, however, because......
-
DR v. State, 98-2982.
...D.R. was warned by the owner or lessee of the premises to depart and refused to do so. § 810.08, Fla. Stat. (1997); State v. Jackson, 281 So.2d 353, 354-55 (Fla. 1973) ("Where the one entering a building has permission to enter, either express or implied, there is no trespass and, therefore......
-
Hicks v. State
...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 h......
-
State v. Hicks
...information or indictment. We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and find conflict with State v. Jackson, 281 So.2d 353 (Fla.1973); Howard v. State, 400 So.2d 1329 (Fla. 4th DCA 1977), cert. denied, 364 So.2d 888 (Fla.1978). We hold that consent to entry is......