Thomas v. State, No. 70975

CourtFlorida Supreme Court
Writing for the CourtBARKETT; EHRLICH; KOGAN
Citation531 So.2d 708,13 Fla. L. Weekly 464
Parties13 Fla. L. Weekly 464 Rodney THOMAS, Petitioner, v. STATE of Florida, Respondent.
Decision Date18 August 1988
Docket NumberNo. 70975

Page 708

531 So.2d 708
13 Fla. L. Weekly 464
Rodney THOMAS, Petitioner,
v.
STATE of Florida, Respondent.
No. 70975.
Supreme Court of Florida.
Aug. 18, 1988.
Rehearing Denied Oct. 27, 1988.

Richard L. Jorandby, Public Defender and Jeffrey L. Anderson, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.

Robert A. Butterworth, Atty. Gen. and Deborah Guller, Asst. Atty. Gen., West Palm Beach, for respondent.

BARKETT, Justice.

We have for review State v. Thomas, 508 So.2d 1287 (Fla. 4th DCA 1987), based on express and direct conflict with K.W. v. State, 468 So.2d 368 (Fla. 2d DCA 1985), and Preston v. State, 373 So.2d 451 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1203 (Fla.1980). We have jurisdiction. Art. V,

Page 709

§ 3(b)(3), Fla. Const. We approve the decision below.

Petitioner was arrested after a confidential informant advised police that petitioner had committed a number of burglaries in a particular neighborhood. During surveillance, police saw petitioner jump over a fence and attempt to run away. At the time, petitioner was wearing a pair of socks over his hands and carrying a screwdriver. Petitioner admitted he had entered the area to commit a burglary, but had been arrested before being able to perpetrate the crime.

At trial, the court granted petitioner's motion to dismiss. The trial court specifically found that without the confession, there was insufficient evidence to establish beyond a reasonable doubt the corpus delicti of a violation under section 810.06, Florida Statutes (1985), Florida's burglary tool statute.

On appeal, the Fourth District reversed and held that the totality of the circumstances in this case sufficiently established the corpus delicti independent of petitioner's confession; and that possessing a screwdriver with intent to commit a burglary, even if the screwdriver was not actually used as a burglary tool, was sufficient for a conviction in this case under section 810.06. State v. Thomas, 508 So.2d 1287 (Fla. 4th DCA 1987). This petition for review ensued.

This case asks us to determine under what circumstances the state may criminalize the possession of common household items under the burglary tool statute. Our analysis of this problem begins with an examination of the statute and the criminal law theories upon which it rests.

Where a person is accused of possessing "burglary" tools, the state must prove beyond every reasonable doubt not merely that the accused intended to commit a burglary or trespass while those tools were in his possession, but that the accused actually intended to use those tools to perpetrate the crime. The statute is specific on this point:

Whoever has in his possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree....

§ 810.06, Fla.Stat. (emphasis added). Thus, the statute criminalizes the intent to use an item in an illegal way. Mere possession standing alone will not constitute a crime.

This statute poses problems for our courts. First, it raises the difficulty of discerning something intangible--intent--without which there can be no crime. Second, it opens the door for the abusive or pretextual arrest of persons merely found to possess common household items.

Previously we attempted to deal with these problems in Foster v. State, 286 So.2d 549 (Fla.1973), receded from on other grounds, Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975), by drawing a distinction between common household items and devices that are per se burglary tools. This conclusion subsequently was embodied in the standard jury instruction. See Fla.Std. Jury Instr. (Crim.), at 138.

However, similar concerns have been raised and answered under the common law theory of attempts, and we believe the problem before us today is better resolved by resort to those principles. Indeed, we conclude that the burglary tool statute actually describes and prohibits a crime in the nature of an attempt. 1 In effect, it criminalizes an attempt to commit a burglary or trespass, which is discerned through the possession of tools or devices coupled with the defendant's intent to use those tools in the commission of the crime.

Previously, we have held that an attempt exists only when there is

an intent to commit a crime, coupled with an overt act apparently adapted to effect that intent, carried beyond mere preparation,

Page 710

but falling short of execution of the ultimate design.

Gustine v. State, 86 Fla. 24, 26, 97 So. 207, 208 (1923). Essentially, we have required the state to prove two general elements to establish an attempt: a specific intent to commit a particular crime, 2 and an...

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59 practice notes
  • James v. United States, No. 05–9264.
    • United States
    • United States Supreme Court
    • April 18, 2007
    ...§ 924(e)(1) (2000 ed., Supp.IV), and are not at issue here. 2. The Jones court distinguished its earlier holding in Thomas v. State, 531 So.2d 708 (1988). There, the State Supreme Court upheld a conviction under a state statute criminalizing the possession of burglary tools, Fla. Stat. § 81......
  • Hernandez v. State, No. 98-2413.
    • United States
    • Court of Appeal of Florida (US)
    • November 24, 1999
    ...intent to use the same, or allow the same to be used, to commit 784 So.2d 1129 any burglary or trespass...." Id.; see Thomas v. State, 531 So.2d 708, 709-10 (Fla.1988); Hierro v. State, 608 So.2d 912, 915 (Fla. 3d DCA 1992).3 The defendant was in possession of pry bars and other tools at th......
  • Brown v. State, No. SC95844.
    • United States
    • United States State Supreme Court of Florida
    • October 5, 2000
    ...intent to commit a particular crime, and an overt act toward its commission. That is, the overt act must manifest the specific intent. 531 So.2d 708, 710 (Fla.1988). It would appear that this definition of attempt would make the crime a specific intent crime because the State would be requi......
  • Williams v. State, No. 95-2301
    • United States
    • Court of Appeal of Florida (US)
    • March 5, 1997
    ...delicti that tends to show that the charged crimes were committed. Farinas v. State, 569 So.2d 425, 430 (Fla.1990); Thomas v. State, 531 So.2d 708, 711 (Fla.1988). A prima facie corpus delicti serves to ensure "[t]he judicial quest for truth [which] requires that no person be convicted out ......
  • Request a trial to view additional results
59 cases
  • James v. United States, No. 05–9264.
    • United States
    • United States Supreme Court
    • April 18, 2007
    ...§ 924(e)(1) (2000 ed., Supp.IV), and are not at issue here. 2. The Jones court distinguished its earlier holding in Thomas v. State, 531 So.2d 708 (1988). There, the State Supreme Court upheld a conviction under a state statute criminalizing the possession of burglary tools, Fla. Stat. § 81......
  • Hernandez v. State, No. 98-2413.
    • United States
    • Court of Appeal of Florida (US)
    • November 24, 1999
    ...intent to use the same, or allow the same to be used, to commit 784 So.2d 1129 any burglary or trespass...." Id.; see Thomas v. State, 531 So.2d 708, 709-10 (Fla.1988); Hierro v. State, 608 So.2d 912, 915 (Fla. 3d DCA 1992).3 The defendant was in possession of pry bars and other tools at th......
  • Brown v. State, No. SC95844.
    • United States
    • United States State Supreme Court of Florida
    • October 5, 2000
    ...intent to commit a particular crime, and an overt act toward its commission. That is, the overt act must manifest the specific intent. 531 So.2d 708, 710 (Fla.1988). It would appear that this definition of attempt would make the crime a specific intent crime because the State would be requi......
  • Williams v. State, No. 95-2301
    • United States
    • Court of Appeal of Florida (US)
    • March 5, 1997
    ...delicti that tends to show that the charged crimes were committed. Farinas v. State, 569 So.2d 425, 430 (Fla.1990); Thomas v. State, 531 So.2d 708, 711 (Fla.1988). A prima facie corpus delicti serves to ensure "[t]he judicial quest for truth [which] requires that no person be convicted out ......
  • Request a trial to view additional results

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