RILEY MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the evidence was insufficient to support a conviction for possession of burglary tools, but affirmed the other convictions.
Riley Mitchell was convicted of burglary, possession of burglary tools, petit theft, and obstructing an officer. The only evidence for the burglary to…
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RYDER, Acting Chief Judge.
Riley Mitchell appeals the trial court’s denial of his motion for judgment of acquittal on charges of burglary of a structure, possession of burglary tools, petit theft and obstructing or opposing an officer without violence. We agree with the appellant as to the conviction of possession of burglary tools, but otherwise affirm.
The state must prove that the appellant had 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_” § 810.06, Fla. Stat. (1993). The state merely offered an officer’s testimony that Mitchell had a pair of socks in his pocket when he was searched. No other evidence was presented to establish that the socks were used in the burglary. Absent other evidence that the socks were used in conjunction with the process of committing a burglary, we must reverse and set aside the conviction for possession of burglary tools. See Green v. State, 604 So. 2d 471 (Fla.1992).
We note, however, that without the additional points assessed for the offense of possession of burglary tools, the appellant’s guideline sentence drops into the next lower range. Accordingly, we also remand for re-sentencing.
Affirmed in part, reversed in part and remanded.
CAMPBELL and WHATLEY, JJ., concur.
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T.H. v. State, 658 So. 2d 1161 (Fla. 2d DCA 1995)…uent. The supreme court has held that socks are “items of personal apparel” that do not fall within the definition of burglary tools in section 810.06, Florida Statutes (1993). Green v. State, 604 So. 2d 471 (Fla.1992); see also Mitchell v. State, 657 So. 2d 943 (Fla. 2d DCA 1995). The state argues that Green controls only when the apparel is worn for its intended use. We do not find language in that case which limits the holding to those instances. Rather, Green holds that section 810.06 does not contain a…
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