CARROLL HUMPHREYS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carroll Humphreys appeals his convictions for burglary with a weapon and possession of burglary tools, challenging the imposition of consecutive sentences. The court affirms the burglary conviction but vacates the separate sentence for possession of burglary tools, finding it a lesser included offense that cannot be separately sentenced under Florida law.
The court held that possession of burglary tools is a lesser included offense when the defendant could not have been convicted of possessing the tool absent its use in committing the burglary. Therefore, a separate sentence for possession of burglary tools cannot be imposed under these circumstances.
[1] Possession of burglary tools is not a separate and distinct offense for which a separate sentence can be imposed when the tools were used to perpetrate the burglary.
[2] A conviction for possession of burglary tools may be a lesser included offense excluded from separate sentencing under Florida Statutes § 775.021(4) when the tools were u…
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Join FLexlaw to unlock all legal intelligence“because the defendant could not have been convicted for possession of a screwdriver had he not used it to perpetrate a burglary, possession of burglary tools was not a separate and distinct offense for which a separate sentence could be imposed”
Establishes the legal principle that possession of a burglary tool is not separately punishable when possession is contingent on its use in the underlying crime
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHumphreys was arrested at a burglary site with a screwdriver on his person. He admitted using the screwdriver to gain entry to the burglarized locatio…
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HOBSON, Acting Chief Judge.
Carroll Humphreys appeals from convictions of burglary in the course of which he armed himself with a dangerous weapon and possession of burglary tools. He received a thirty-year sentence for the burglary and a consecutive five-year sentence for possession of burglary tools.
On appeal, Humphreys argues that he should not have received a separate sentence for possession of burglary tools, but only one sentence for burglary. Under the circumstances of this case, we agree. The only evidence of possession of burglary tools was a screwdriver on Humphreys’ person when he was apprehended at the burglary site, and Humphreys’ own admission that he had used the screwdriver to gain entry. The facts are thus the same as those in Foster v. State, 286 So. 2d 549 (Fla.1973). In Foster, our supreme court held that because the defendant could not have been convicted for possession of a screwdriver had he not used it to perpetrate a burglary, possession of burglary tools was not a separate and distinct offense for which a separate sentence could be imposed. Because the possession charge in the instant case could only have been made under the circumstances of the screwdriver having been used in the perpetration of the burglary, we hold that Foster is controlling.1 We find the other points raised by Hum-phreys to be without merit and we affirm his convictions.
Accordingly, the sentence imposed on Humphreys for possession of burglary tools is vacated. Humphreys’ sentence for burglary in the course of which he armed himself with a dangerous weapon is affirmed without the necessity of bringing Hum-phreys before the trial court for resentencing.
RYDER and DANAHY, JJ., concur. . The State argues that the sentence is governed by Section 775.021(4), Florida Statutes (1979), which provides:
Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.
However, we have examined the above section and determined that under the particular facts present in this case and in Foster v. State, possession of burglary tools is a category (4) lesser included offense as defined in Brown v. State, 206 So. 2d 377 (Fla. 1968). As such, it is excluded from the operation of Section 775.-021(4).
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Cited By
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Ferguson v. State, 420 So. 2d 585 (Fla. 1982)…OYERTON, Justice. This is a petition to review the decision of the Third District Court of Appeal reported at 404 So. 2d 179 (Fla. 3d DCA 1981), which directly conflicts with the decision in Humphreys v. State, 388 So. 2d 607 (Fla. 2d DCA 1980). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. We approve the decision of the district court below and hold that a person may be convicted and sentenced for both burglary and possession of burglary tools when the tool is a c…
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Ferguson v. State, 404 So. 2d 179 (Fla. 3d DCA 1981)…ell v. State, 405 So. 2d 986 (Fla. 1st DCA 1981). Since we agree with both Cantrell and Borges that possession of burglary tools— even when they are common household items — is not a lesser included offense of burglary, contra, Humphreys v. State, 388 So. 2d 607, n.1 (Fla. 2d DCA 1980), Section 775.021(4), Florida Statutes (1979), which, under Hegstrom, entirely controls the present issue, requires that the judgments and sentences under review be Affirmed.…
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Gromkiwicz v. State, 422 So. 2d 13 (Fla. 2d DCA 1982)…PER CURIAM. Affirmed on authority of Borges v. State, 415 So. 2d 1265 (Fla. 1982), which, in effect, overrules our decision rendered in [*14] Humphreys v. State, 388 So. 2d 607 (Fla. 2d DCA 1980). GRIMES, A.C.J., and RYDER and CAMPBELL, JJ., concur.…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Foster v. State, 286 So. 2d 549 (Fla. 1973)