State v. Waters

• Decision Date: 28 July 1983
• Docket Number: No. 61036,61036
• Parties: STATE of Florida, Petitioner, v. Nathaniel WATERS, Respondent.
• Court: Florida Supreme Court

Page 66

436 So.2d 66

STATE of Florida, Petitioner, v. Nathaniel WATERS, Respondent.

No. 61036.

Supreme Court of Florida.

July 28, 1983.

Jim Smith, Atty. Gen., and Laura R. Morrison and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for petitioner.

Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.

BOYD, Justice.

This cause is before the Court upon the state's petition for review of the decision of the district court of appeal, reported as Waters v. State, 401 So.2d 1131 (Fla. 4th DCA 1981). The district court held that the evidence was insufficient to support respondent Nathaniel Waters' conviction of attempted burglary. In reaching the question of the sufficiency of the evidence, however, the district court passed upon other questions which it has certified as being of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Respondent was charged with attempted second-degree burglary in violation of sections 810.02 ¹ and 777.04(1), FLORIDA STAT² utes (1979). The information alleged that respondent had attempted to unlawfully enter the dwelling of John Rush with intent to commit the offense of theft therein. The case was tried to the court sitting without a jury. The occupant of the dwelling, John Rush, testified that he caught respondent in the act of trying to break into his rented room which was locked with a padlock on the outside. Investigating officers testified that they observed evidence of the attempted breaking in the form of indentations and a bent padlock hasp on the door to Rush's room. John Rush testified that his clothes, stereo phonograph, and television set were inside the room. After hearing all of the testimony, including respondent's claim of innocence, the trial judge found respondent guilty of attempted burglary.

On appeal, the district court held that the evidence failed to prove the element of intent to commit theft. This element could only have been proved by circumstantial evidence, the court reasoned, and the circumstances shown were not inconsistent with every reasonable hypothesis other than the hypothesis of an intent to commit theft. The court directed that judgment be entered adjudicating respondent guilty of attempted trespass.

Although the information alleged that at the time of the attempted unlawful entry the accused intended to commit theft inside the dwelling, the state argued to the district court that pleading and proof of intent to commit a specific offense were unnecessary. The state also argued that section 810.07, Florida Statutes (1979), could be relied upon to establish proof of the requisite criminal intent. So, the district court certified the following questions of great public importance:

1. In a prosecution for burglary under section 810.02, Florida Statutes (1979), is it necessary for the state to allege an intent to commit a specific offense?

2. Is the statutory rebuttable presumption contained in section 810.07, Florida Statutes (1979), sufficient to prove a prima facie case of intent to commit the specific offense of theft?

401 So.2d at 1133.

With regard to the first certified question, our answer is that an indictment or information charging burglary need not specify the offense the accused is alleged to have intended to commit, although it must allege the essential element of intent to commit an offense. The traditional practice, as respondent correctly points out, has been to require allegation of intent to commit a specified offense and to require proof of such intent. See, e.g., Booker v. State, 397 So.2d 910 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981); Jalbert v. State, 95 So.2d 589 (Fla.1957); Turknett v. State, 116 Fla. 562, 156 So. 538 (1934); Walker v. State, 44 Fla. 466, 32 So. 954 (1902); Clifton v. State, 26 Fla. 523, 7 So. 863 (1890); Charles v. State, 36 Fla. 691, 18 So. 369 (1895); Jackson v. State, 300 So.2d 47 (Fla. 3d DCA 1974), cert. denied, 312 So.2d 753 (Fla.1975); Turner v. State, 267 So.2d 882 (Fla. 2d DCA 1972); Dobry v. State, 211 So.2d 603 (Fla. 3d DCA 1968); Bonamy v. State, 205 So.2d 707 (Fla. 3d DCA 1968); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA), cert. denied, 207 So.2d 452 (Fla.1967).

Although there may be exceptions where the statutory language is so generic that an accusation in the language of the statute would not be sufficiently definite, State v. Dilworth, 397 So.2d 292 (Fla.1981), in general an indictment or information framed substantially in the language of the statute is sufficient. State v. Covington, 392 So.2d 1321 (Fla.1981); Martinez v. State, 368 So.2d 338 (Fla.1978). We therefore hold that an indictment or information charging burglary is not required to specify the offense which the accused is alleged to have intended to commit. If all the essential statutory elements of the offense are alleged, the accusatory document will generally be deemed sufficient. Where an indictment or information framed substantially in the language of the statute is nevertheless "so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense," Fla.R.Crim.P. 3.140(o ), it will still be the duty of the trial judge to dismiss the indictment or information upon motion of the defendant.

The early cases establishing the requirement of detailed specificity in indictments and informations were decided long before this Court adopted broad reciprocal discovery procedures. Our present discovery rules provide defendants with a much better means for avoiding surprise or embarrassment in the preparation of a defense than just the terms utilized in a charging document. Further, trial courts have the authority to remedy a lack of definiteness by granting a defendant's motion for a statement of particulars. Fla.R.Crim.P. 3.140(n). In this decision, we merely hold that in a burglary charge it is not per se required that the particular offense which the accused allegedly intended to commit in the premises be specified. This specificity will have to be furnished by the prosecution before the case goes to trial if timely requested by the defendant. Although the better practice is to provide specificity in the charging document, it is not fundamental error to use the general phraseology of the statute on which the charge is based. There clearly has been no showing of prejudice in this cause.

The essential elements of burglary as defined in section 810.02 are (1) entering or remaining in, (2) a structure or conveyance, (3) with intent to commit an offense therein. ³ Since the element of specific criminal intent may generally be alleged in the language of the statute, the indictment or information sufficiently alleges this element if it sets forth that the accused acted "with the intent to commit an offense therein." § 810.02(1), Fla.Stat. (1981). Of course, such intent, along with the other elements, must then be proved beyond a reasonable doubt in order for a verdict of guilt and judgment thereon to be proper. As a practical matter, where the state has evidence of the intent element, such evidence will generally show intent to commit a specific offense. In general, therefore, it will not be difficult for the state to specify the offense in the indictment or information. For this reason we expect that the traditional practice of specifying the offense will continue. We merely hold that specification of the offense intended is not so essential a part of the intent element as to require that it always be set out in the charging document.

The second certified question pertains to the operation and effect of section 810.07, Florida Statutes (1979), which provides:

In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense.

In framing the certified question, the district court was mindful of the fact that in this case the information alleged intent to commit theft. Thus the court was focusing on the facts of this case when it asked us whether section 810.07 is "sufficient to prove a prima facie case of intent to commit the specific offense of theft[.]" In this case, however, section 810.07 is inapplicable on its face because here the charge was attempted burglary rather than burglary and because here there was no proof of entering, but only of an attempt to break and enter. It is elementary that penal statutes are to be strictly construed. We therefore decline to expand the scope of section 810.07 beyond the clearly expressed legislative intent.

In order to provide guidance to the courts, however, we will attempt to respond to the certified question, which we modify to read as follows: "In a trial on a charge of burglary, is proof of the factual elements set out in section 810.07 sufficient to establish a prima facie case of intent to commit an offense?"

The predecessor of section 810.07 was first enacted in 1895. Ch. 4405, § 5, Laws of Fla. (1895). However, the statute has been the subject of surprisingly little judicial treatment at the appellate level until recently. Looking at the plain language of the statute, we can see that it sets out three factual elements: entry, stealth, and lack of consent. If proved, the statute provides, the facts thus shown "shall be prima facie evidence of entering with intent to commit an offense." That is, proof of the three elements will always be deemed to be a sufficient showing to allow a case of burglary to go to the jury even if there is no other evidence of the defendant's state of mind at the time of the unlawful entering, and will be legally sufficient proof of intent to support a verdict. ⁴ Th...