State v. Stephens
Decision Date | 06 June 1991 |
Docket Number | No. 89-1668,89-1668 |
Citation | 586 So.2d 1073 |
Parties | STATE of Florida, Appellant, v. Corey L. STEPHENS, Appellee. 586 So.2d 1073, 16 Fla. L. Week. D1512, 16 Fla. L. Week. D2686 |
Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellant.
James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellee.
The issue here concerns proper judicial interpretation of the revised burglary statute, whereby the Florida Legislature consolidated the statutes relating to burglary of structures and burglary of conveyances, thereby improvidently mixing apples and oranges and emerging with the current version of section 810.02(1), which provides:
(1) "Burglary" means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain. (Emphasis added).
It is axiomatic that criminal statutes are to be strictly construed. Therefore, the statutory reference to intent to commit an offense within a conveyance must be construed to encompass only offenses which can be committed, and completed, within the confines of the conveyance itself, e.g., theft or destruction of personal property located inside the conveyance or a criminal offense directed against a person situated inside the conveyance--i.e., assault, battery, rape, or murder.
The defendant below, Corey Stephens, was charged in Seminole County with grand theft of a motor vehicle (a Pontiac automobile), burglary of a conveyance (the same vehicle), fleeing or attempting to elude, and malicious damage to the car. The jury acquitted Stephens of all counts except burglary of the conveyance. The burglary count alleged that Stephens had committed the burglary in Seminole County by unlawfully remaining in the Pontiac without the consent of the owner, with the intent to commit an offense therein, to-wit: theft or fleeing and eluding police officers.
After the verdict, the trial judge entered a judgment of acquittal on the burglary count on the basis of improper venue. This was because the information alleged the burglary occurred in Seminole County, where the trial was held, but the evidence at trial showed that Stephens broke into the vehicle in Volusia County and then fled south in it into Seminole County, where he was apprehended. The trial judge reasoned that the burglary of the conveyance occurred in Volusia County. In fact, no burglary occurred at all.
The state's evidence adduced below was that Stephens entered a conveyance in Volusia County with the intent to steal it, not to commit any offense therein. He was not guilty of burglary of the conveyance in either Volusia County or Seminole County. Neither grand theft of a vehicle nor fleeing from a police officer in that stolen vehicle is an offense committed within the vehicle. 1 1] In this respect, we disagree with State v. Dalby, 361 So.2d 215 (Fla. 2d DCA 1978).
Under the rationale of Dalby and the dissent herein, a person who steals a car by driving it away after the owner leaves the key in the ignition is guilty of two felonies (grand theft and burglary), whereas a person who steals that same car by towing it away with a wrecker is guilty of only grand theft. Surely, that bizarre result was not intended by the legislature.
The dissent herein faults the majority for affirming the trial court on a basis which has not been argued by the state. The appellate courts of Florida have long recognized the "tipsy coachman" rule, which states that a trial court should be upheld if it is correct for any reason even though an incorrect reason is given by the trial court for its holding. See Vandergriff v. Vandergriff, 456 So.2d 464 (Fla.1984); In re Yohn's Estate, 238 So.2d 290 (Fla.1970); MacNeill v. O'Neal, 238 So.2d 614 (Fla.1970); Carraway v. Armour & Co., 156 So.2d 494 (Fla.1963); Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla.1962); Brookridge Community Property Owners, Inc. v. Brookridge, Inc., 573 So.2d 972 (Fla. 5th DCA 1991); Taylor v. Orlando Clinic, 555 So.2d 876 (Fla. 5th DCA 1989), review denied, 567 So.2d 435 (Fla.1990); Greenbriar Condominium Apartments II Ass'n, Inc. v. Koch, 480 So.2d 131, 133 (Fla. 2d DCA 1985), review denied, 491 So.2d 279 (Fla.1986); Citizens Federal Savings & Loan Ass'n of St. Lucie County v. Loeb, Rhoades, Hornblower & Co., 473 So.2d 679, 683 (Fla. 4th DCA 1984); Alls v. 7-Eleven Food Stores, Inc., 366 So.2d 484 (Fla. 3d DCA 1979); Stone v. Rosen, 348 So.2d 387 (Fla. 3d DCA 1977).
Accordingly, we affirm the trial court's acquittal of Stephens on the charge of burglary of a conveyance.
AFFIRMED.
I respectfully disagree with the majority opinion's holding that burglary of a conveyance 1 cannot be established by proof that a defendant broke into a car with the intent to steal the car, and that only proof that the defendant intended to steal some object inside the vehicle can suffice. In my view, proof of either scenario provides a factual basis to sustain a conviction of burglary of a conveyance. Since in this case there was proof Stephens broke into a car with the intent to steal it, and the jury so found, I would reverse the trial judge's judgment of acquittal on count II (burglary of a conveyance).
I also question the propriety of basing this court's opinion on an interpretation of the burglary statute which was not argued below, nor on appeal, and to which the state has not had a chance to respond. This appeal was taken by the state when the trial court dismissed count II (burglary of a conveyance) after a jury trial and guilty verdict was returned on that count. The trial judge ruled that venue to try the burglary count was improper in Seminole County, site of the trial, because the information alleged Stephens committed the crime by unlawfully remaining in the car in Seminole County, but it was proved at trial that he broke into the car in Volusia County, and drove it to Seminole.
The language of Florida's burglary of a conveyance statute is quite broad. "Burglary" is defined as "entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain." Section 810.02(1), Fla.Stat. (1989). "Conveyance" means any motor vehicle, ship, vessel, railroad car trailer, aircraft, or sleeping car; and "to enter a conveyance" includes taking apart any portion of the conveyance. Section 810.011(3), Fla.Stat. (1989). The Legislature expressly provided that burglary can be committed by entering or remaining in a structure or conveyance with the intent to commit any offense. I submit the majority opinion's holding that the statute excludes auto theft as a possible underlying offense is contrary to express legislative intent.
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 was "whether the simple removal of hubcaps constitutes burglary of a conveyance." 376 So.2d at 286. This court held that it did not. Although the removal of the hubcaps met the definition of "to enter a conveyance", there was no "entering" the conveyance with the intent to commit an offense, an essential element of burglary. In other words, the "taking apart" of the conveyance itself is not burglary if the defendant fails to enter or remain in the conveyance with the requisite intent.
Unlike the situation in Hankins, here Stephens entered a car with the intent to steal it. In State v. Dalby, 361 So.2d 215 (Fla. 2d DCA 1978), a case identical to the present case, the court specifically held that the state may charge a defendant with burglary of a conveyance when the offense referred to in the statute is the theft of the vehicle itself. In Dalby, the defendant moved to dismiss the information against him, arguing that the word "therein" in the burglary statute requires that the offense which a person has the intent to commit must be capable of being committed within the vehicle. He also argued that it was impossible to commit the offense of grand larceny of a conveyance from within that conveyance since larceny requires exportation of the entire vehicle. The trial court agreed with the defendant and dismissed the information. On appeal, the court held that this ruling was erroneous:
While we agree that the word 'therein' requires that the offense must be capable of being committed within the vehicle, we also think that a defendant can commit grand larceny of a vehicle in this fashion. The fact that the entire vehicle must move for the larceny to occur is irrelevant. It is not the vehicle which is committing the crime but rather the defendant, and the defendant causes the movement of the vehicle by sitting within the vehicle's passenger compartment and pressing the accelerator.
The court also rejected the defendant's argument on appeal that the Legislature did not intend for the burglary statute to cover this particular factual situation:
In Thayer v. State, 335 So.2d 815, 817 (Fla.1976), the supreme court said,
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