Barrett v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2008
RICKY BARRETT,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D06-4531
[June 25, 2008]
CORRECTED OPINION
FARMER, J.
We grant defendant’s motion for clarification and substitute this
corrected opinion for the original opinion.
In this conviction for armed burglary, we conclude that the evidence
does not support a finding that defendant was armed while committing
the burglary and therefore reverse that conviction.1
Defendant admitted breaking into an automobile dealership for the
purpose of taking something of value. Inside he found a safe. The safe
being locked and heavy, he pushed it outside the premises into his
vehicle and drove away from the scene. Later he was able to force open
the safe with a crowbar. Inside he found some blank checks used in the
business, some motor vehicle titles, and a loaded gun. He threw the
titles into a dumpster, cashed a check, and sold the gun for crack
cocaine. Through the cashed check he was identified and arrested. He
was tried for armed burglary because he stole the safe in which the gun
was stored.
Section 810.02(2)(b) defines burglary as a felony punishable by life “if,
in the course of committing the offense, the offender ... becomes armed
within the … structure … with … a dangerous weapon.” § 810.02(2)(b),
Fla. Stat. (2007). In Hardee v. State, 534 So.2d 706 (Fla. 1988), the
1
We affirm the other convictions without further discussion.
court was called upon to determine whether this text required that the
gun be loaded with bullets. The court explained:
“A person having possession of a gun during a burglary is
subject to a minimum mandatory sentence under section
775.087 regardless of whether the gun was loaded. We do
not believe that the legislature intended a different
construction of section 810.02(2)(b) which enhances the
crime of burglary when the defendant ‘is armed or arms
himself’ with a gun.” [e.s., c.o.]
534 So.2d at 708. As the Florida Supreme Court noted in Hardee,
section 775.087(4) defines possession of a firearm by a convicted felon as
follows: “Possession may also be proven by demonstrating that the
defendant had the firearm within immediate physical reach with ready
access with the intent to use the firearm during the commission of the
offense.”
§ 775.087(4), Fla. Stat. (2007).
Hardee holds that the
legislature intended the same construction for the armed burglary
statute and the felony possession of a firearm statute. Giving the two
provisions this common meaning of “possession” we conclude that it is
necessary for the State to offer evidence “demonstrating that the
defendant had the firearm within immediate physical reach with ready
access with the intent to use the firearm during the commission of the
offense.”
It is now established in Florida law that felony crimes of possession of
forbidden substances or things require proof of guilty knowledge. See
Washington v. State, 813 So.2d 59 (Fla. 2002) (knowledge of the illicit
nature of a substance is an element of the crime of possession even
though this element is not explicitly stated in the standard jury
instructions); Scott v. State, 808 So.2d 166 (Fla. 2002) (State has the
burden in prosecution for possession of controlled substance of proving
the defendant’s possession was knowing); Chicone v. State, 684 So.2d
736 (Fla. 1996) (holding that existence of mens rea is the rule rather than
an exception to the principles of Florida criminal jurisprudence; guilty
knowledge is implicit in the concept of possession as provided in statutes
prohibiting possession of controlled substance); Reynolds v. State, 111
So. 285 (Fla. 1926) (holding that crime of possession of liquor required
“conscious and substantial possession by the accused, as distinguished
from a mere involuntary or superficial possession”). The offense of
arming oneself during a burglary means that the offender equipped
himself with a firearm. To equip oneself with something is to possess it.
Nothing in section 810.02(2)(b) suggests that the legislature meant to
dispense with the presumptive element of knowledge.
-2-
No evidence indicates that defendant became aware of the presence of
the gun on the premises where the burglary was committed. No evidence
demonstrates that defendant knew he “had the firearm within immediate
physical reach with ready access with the intent to use the firearm
during the commission of the offense.” In fact, the only evidence about
the gun is from defendant’s recorded confession. In that evidence, he
said he pushed the safe into his vehicle and drove it away, at which point
the burglary was complete. The State offered no evidence that the safe
was opened at the scene of the burglary.
Because the evidence does not demonstrate that defendant became
armed during the burglary, it follows that his motion for judgment of
acquittal on the armed burglary charge should have been granted. On
remand, the trial court shall reduce the conviction for armed burglary to
burglary of a structure.
Reversed.
WARNER, J., and CONNER, BURTON C., Associate Judge, concur.
*
*
*
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ana I. Gardiner, Judge; L.T. Case No. 06-3902 CFA.
Carey Haughwout, Public Defender, and James W. McIntire, Assistant
Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley,
Assistant Attorney General, West Palm Beach, for appellee.
Final upon disposition; no further motion for rehearing will be
entertained.
-3-
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