Supreme Court of Florida
TERRELL CURTIS DREW,
STATE OF FLORIDA,
[November 9, 2000]
We have for review Drew v. State,736 So. 2d 1188 (Fla. 2d DCA 1999),
based on certified direct conflict with the decision in State v. Hankins, 376 So. 2d
285 (Fla. 5th DCA 1979). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
At issue in this case is whether the act of removing hubcaps or tires from a vehicle
in and of itself constitutes a burglary. The Second District in Drew (tires) and State
v. Word, 711 So. 2d 1240 (Fla. 2d DCA 1998) (tires) held that there was a burglary
while the Fifth District in Hankins (hubcaps) held there was not. Based on the
purpose and history of the offense of burglary at common law and our
interpretation of the burglary statute, we hold that the sole act of removal of
hubcaps or tires from a motor vehicle, while clearly constituting an act of criminal
larceny, does not constitute a burglary.
On July 14, 1997, at approximately 11 p.m., Polk County Sheriff’s Deputy
James Orgic observed Terrell Curtis Drew and his codefendant, Willie D. Wright,
in the vicinity of Mack Lewis Auto Sales. Orgic testified that Drew was carrying a
lug wrench at the time and was using it to remove lug nuts from a vehicle. Drew
admitted that he took the lug nuts from a brownish-red Chevrolet parked behind the
Auto Sales business and that with the assistance of his codefendant, he had
removed the missing tires from the car. 1 Subsequently, Drew and Wright were
charged by information with petit theft, possession of burglary tools, and burglary
of a conveyance in violation of sections 812.014(3), 810.06 and 810.02(4), Florida
Statutes (1997), respectively. Drew filed a motion to dismiss the burglary and
possession of burglary tools charges, asserting that the undisputed material facts as
set out above did not constitute a prima facie showing of guilt on these charges.
The trial court denied this motion and the case proceeded to trial. At trial, Drew
did not dispute that he had removed tires from the car. Instead, his attorney
Mack Lewis, the owner of Mack Lewis Auto Sales, testified that three tires were missing from
the car when he arrived that night after being notified of the incident by the police.
contended that on these facts, Drew could not be found guilty of burglary or of
possession of burglary tools.2
After the State rested its case, Drew moved for a judgment of acquittal and
again specially argued that the counts of burglary and possession of burglary tools
did not apply to these circumstances. This motion was denied and the jury
returned guilty verdicts on all three of the offenses charged. Drew was adjudicated
guilty and sentenced to 364 days in the county jail for the burglary charge with
credit for time served, 364 days in the county jail for the possession of burglary
tools charge, and to time served for the petit theft, all such sentences to run
concurrent with each other. Drew appealed to the Second District, and his
conviction and sentence were per curiam affirmed on the authority of the court’s
prior decision in Word that the removal of tires from a motor vehicle constituted a
In fact, during opening arguments, Drew’s attorney stated:
Ladies and gentleman of the jury, I’m going to tell you something very
interesting right now. I’m going to tell you something that you probably
didn’t expect to hear at trial, and that is that Mr. Drew sits before you a
guilty person. He is guilty of Count II of the information. He is guilty of
petit theft. He took the tires off the car. The reason why you are here
today is to decide whether or not he is guilty of burglary and possession
of burglary tools.
At common law, burglary was defined as breaking and entering the dwelling
house of another at night with the intent to commit a felony therein. See 2 Wayne
R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.13, at 464 (1986).
The underlying purpose of the crime of burglary was to punish the forcible invasion
of a habitation and violation of the heightened expectation of privacy and
possessory rights of individuals in structures and conveyances. See Presley v.
State, 61 Fla. 46, 48, 54 So. 367 (1911). As Sir William Blackstone once
explained: “[burglary] has always been looked upon as a very heinous offense: not
only because of the abundant terror that it naturally carries with it, but also as it is a
forcible invasion of that right of habitation, which every individual might acquire in
a state of nature.” 4 William Blackstone, Commentaries on the Laws of England
In 1962, a definition of burglary was approved by the drafters of the Model
Penal Code that closely resembled the common law crime:
(1) Burglary Defined. A person is guilty of burglary if
he enters a building or occupied structure, or separately
secured or occupied portion thereof, with purpose to
commit a crime therein, unless the premises are at the time
open to the public or the actor is licensed or privileged to
enter. It is an affirmative defense to prosecution for
burglary that the building or structure was abandoned.
Model Penal Code, § 221.1(1), at 60-61 (1980). The commentary to this section
explains that this definition attempted to restate the original reach of the crime:
The needed reform [of the offense of burglary] should
take the direction of narrowing the offense to reflect more
appropriately the distinctive situation for which it was
originally derived. The offense has thus been limited in
the Model Code to the invasion of premises under
circumstances especially likely to terrorize occupants.
Most of the extensions of the offense that have been
added by legislation over the years have been discarded.
Model Penal Code, § 221.1 cmt. 2, at 67.
Of course, burglary of a conveyance was unknown at common law and is
not included as part of the 1962 Model Penal Code definition of burglary as set out
above. Rather, burglary of a conveyance is a creature of statute. In Florida,
burglary is defined in a way largely consistent with the Model Penal Code but
expanded to include conveyances:
Burglary means entering or remaining in a dwelling, a
structure, or a conveyance with the intent to commit an
offense therein, unless the premises are at the time open
to the public or the defendant is licensed or invited to
enter or remain.
§ 810.02(1), Fla Stat. (1997). Section 810.011(3), Florida Statutes (1997), defines
conveyance as “any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or
sleeping car.” In addition, “‘to enter a conveyance’ includes taking apart any
portion of the conveyance.” § 810.011(3), Fla. Stat. (1997).
This Court construed the statutory definition of entry of a conveyance in
Von Edwards v. State, 377 So. 2d 684 (Fla. 1979), and, based upon that
construction, rejected a claim that the statutory definition of burglary was
unconstitutionally vague or overbroad. In rejecting the claim of overbreadth we
accepted the State’s proffered interpretation of the statute:
The state responds that the word "therein" in section
810.02(1) requires that when the entering of a conveyance
is committed, there must be an intent to commit an
offense "therein," citing State v. Dalby, 361 So. 2d 215
(Fla. 2d DCA 1978). Thus, the legislative intent is that
the removal of a portion of the conveyance must be to
facilitate the commission of an offense within the
conveyance. Thus the statute does not seek to punish as
burglary conduct which should be treated as larceny. We
Id. at 685 (emphasis supplied).
Subsequently, in State v. Stephens, 601 So. 2d 1195 (Fla. 1992), we held
that burglary of a conveyance can be proven even when the underlying offense
intended to be committed is the stealing of the conveyance itself. See id. at 1196.
Relying on the common English usage of the word “therein,” this Court held “[t]he
use of the word ‘therein’ plainly indicates that the crime of burglary can exist if the
defendant formed an intent to commit a crime ‘in that place.’” Id. at 1196
(emphasis added). Moreover, we explained:
We believe the district court's error in this case was
based on a misconception of the temporal sequence
usually involved in burglaries of conveyances. Such a
burglary is complete the moment the defendant enters or
remains within the vehicle with the requisite intent. Even
if the defendant changes plans and decides not to steal
the vehicle, the crime of burglary still would exist.
Id. at 1197 (emphasis added). Importantly, in Stephens, we observed that the
district court had erred in any reliance on the Fifth District’s holding in Hankins that
the removal of hubcaps was insufficient to constitute a burglary of a conveyance,
because “[o]bviously, there was no ‘entering or remaining in’ the conveyance in
that instance.” Id. at 1196. Hence, we tacitly approved the holding in Hankins in
ENTRY OF A CONVEYANCE
Other cases have also declined to find that facts similar to those herein could
be characterized as a burglary. The Fourth District recently considered this issue in
Jones v. State, 763 So. 2d 1101 (Fla. 4th DCA), review granted, 760 So. 2d 948
(Fla. 2000), where the defendant appealed a conviction for burglary based solely
upon the removal of hubcaps and lug nuts from the wheels of an automobile. On
appeal, the court reversed the burglary conviction, relying on our decision in Von
Edwards and the statement therein that “the legislative intent is that the removal of a
portion of the conveyance must be to facilitate the commission of an offense within
the conveyance.” Id. at 1102 (quoting Von Edwards, 377 So. 2d at 685) (emphasis
added). Based on this language from Von Edwards, the Jones court concluded
that the removal of a wheel, tire, hubcap, or lug nut, or any combination thereof,
from the outside of a conveyance, cannot constitute burglary because “[u]nder
those circumstances there is no ‘intent to commit an offense therein,’ i.e., within the
vehicle.”3 See id. at 1103. The court also noted that Word did not address the
requirement discussed by this Court in State v. Stephens, 601 So. 2d 1195 (Fla.
1992), that the offense must be capable of being committed within the vehicle. See
Jones at 1103.
Of course, we have already noted the Fifth District’s holding in Hankins that
the removal of hubcaps alone did not constitute a burglary. In an opinion by
Associate Judge Parker Lee McDonald, the Hankins court explained:
The gravamen of the offense of burglary, whether of a
conveyance or otherwise, is a nonconsensual entry with
the intent to commit an offense within; the purpose of the
statute is to punish an invasion of the possessory
property rights of another in structures and conveyances.
The definition of “entering a conveyance” in Section
810.011(2) does not obviate the necessity for alleging
facts in support of an intent to commit an offense therein.
The Jones court certified conflict with Word, and Jones is currently before this Court for
376 So. 2d at 286 (citations omitted) (emphasis added). Similarly, in R.E.S. v.
State, 396 So. 2d 1219 (Fla. 1st DCA 1981), the court held that the sole act of
siphoning gasoline from a car was not a burglary. There, the court reasoned that
the cases upholding convictions for burglary of automobiles involved entry into a
compartment of a vehicle which can be entered wholly or partially by a person.
See id. at 1220.4
On the other hand, a number of Florida cases have considered “entry of a
conveyance” in other contexts and have applied a more expansive meaning to
“entry.” For example, the Second District held in Word that the removal of a tire
from a motor vehicle constituted a burglary. Other cases have reached seemingly
similar results. See, e.g., Braswell v. State, 671 So. 2d 228, 229-30 (Fla. 1st DCA
1996) (holding that reaching into the bed of a pickup truck to remove a secured
item within the truck was an entry); Greger v. State, 458 So. 2d 858, 860 (Fla. 3d
DCA 1984) (holding that the loosening and removal of bolts and nuts from the
protruding motor at the stern of the boat constituted an entry for purposes of the
In Kirkland v. State, 142 Fla. 73, 194 So. 624 (1940), a case predating the current burglary
statute, this Court stated in dicta that draining a few gallons of gas out of a storage tank was the
equivalent of drawing gas out of an automobile gas tank, and as such, the conduct could only warrant a
charge and conviction of petit theft. At the time Kirkland was decided, the burglary statute did not
include the “taking apart any portion” language used by the Legislature to define entry. This
requirement was added in 1974. See ch. 74-383, § 30 Laws of Fla.
burglary statute); State v. Harvey, 403 So. 2d 630, 630 (Fla. 2d DCA 1981)
(holding that defendant’s loosening of the bolts in the engine compartment
underneath the car with the intent to remove the alternator was sufficient to
constitute an entry); Bragg v. State, 371 So. 2d 1082, 1083 (Fla. 4th DCA 1979)
(holding it was proper to convict the defendant of burglary for opening the hood of
a vehicle with intent to remove the battery). 5
Other jurisdictions with burglary statutes similar to Florida’s have also
construed their statutes in a manner similar to our analysis in Von Edwards. For
example, the Texas statute defines burglary of a vehicle as follows:
A person commits an offense if, without the effective
consent of the owner, he breaks into or enters a vehicle
or any part of a vehicle with intent to commit any felony
Tex. Penal Code Ann., § 30.04(a) (Vernon Supp. 2000). Further, as in Florida, the
Texas Penal Code defines “enter” as “to intrude any part of the body or any
The court in Zipperer v. State, 481 So. 2d 991 (Fla. 5th DCA 1986), albeit per curiam, also
affirmed convictions for both theft and burglary of a conveyance. However, Judge Upchurch in dissent
expressed his disagreement that the removal of a beer cooler from the open bed of a pickup truck
could be considered an entry for purposes of a conviction under the burglary statute. See id. at 993
(Upchurch, J., dissenting). He opined that such action was no more reprehensible than taking the same
cooler if it had been resting on the roof or fender of a vehicle or on the ground next to it because in
each situation there is no penetration of an enclosed area as required by the burglary statute. See id.
physical object connected with the body” into the motor vehicle or a part thereof.
Id. § 30.04(b)(1)-(2). Based on this statute, the Texas Court of Criminal Appeals
has held that the removal of tires and hubcaps alone is insufficient to constitute an
entry under the Texas burglary statute. See Griffin v. State, 815 S.W.2d 576 (Tex.
Crim. App. 1991). There, the court emphasized that the focus of the inquiry as to
burglary should be on the “breaking of” or removing of things from an enclosed or
Because "enter" is defined exactly the same for
burglary of a building or habitation as it is for burglary of
a vehicle, the element of intrusion into a building or
habitation under § 30.02 should be of the same nature as
intrusion into a vehicle under § 30.04. Stealing a mailbox
or a window shutter attached to the side of a house
would not be entry so as to constitute burglary. Similarly,
stealing a hood ornament or antenna attached to the
outside of a vehicle would not be entry so as to constitute
burglary of a vehicle. Tires and hubcaps are analogous to
these examples, because no entry of any part of the
vehicle is effected.
Contrast the taking of something from inside the
trunk, inside the hood, or from the interior of the vehicle.
There must be a "breaking of the close" to have entry in
the sense long established for burglary. The protection is
to the interior or enclosed part of the described object, be
it a house, a building or a vehicle. Cf. Galemore [v.
State, 61 S.W.2d 519 (1933)], where opening a door and
looking in is not burglary because there is no entry.
Taking items attached to the outside of the vehicle,
house, or building that does not reflect an entry into an
interior or enclosed part of the described object in order
to steal does not constitute the offense of burglary. Since
the burglary of a vehicle statute evolved from the
"regular" burglary statutes, the interpretation of entry
should be consistent. Therefore, we hold that taking the
hubcaps or tires that are attached to the outside of the
car, when no entry into any enclosed portion of the car is
made to effectuate that taking, is not burglary of a vehicle.
Id. at 579.6
In California, the burglary statute provides: “Every person who enters any . .
. vehicle . . . when the doors are locked . . . with intent to commit grand or petit
larceny or any felony is guilty of burglary.” Cal. Penal Code, § 459 (West. 1999).
In People v. Young, 57 Cal. Rptr. 2d 12 (Cal. Ct. App. 1996), the court held that
the removal of headlights from a parked car did not constitute a burglary:
Unlike the car’s interior or its trunk, headlamp
housings can be “entered” without regard to whether the
car is locked, and we view the theft of headlights the
same as we would the theft of windshield wipers or
hubcaps. These are thefts (or attempted thefts) or auto
tampering or acts of vandalism, not burglaries.
Id. at 14. In its opinion, the court relied upon its earlier holding in People v.
This analysis has been subsequently followed and consistently applied in Texas. See Ford v.
State, 860 S.W.2d 731 (Tex. App. 1993) (clarifying distinction of Griffin between items attached to a
conveyance and those items located within the interior, and holding that removal of screwdriver and
wrench inside a tool box bolted and welded to the bed of truck was an entry and thus a burglary
because the bed of the pickup was considered the interior of the vehicle); Richardson v. State, 888
S.W.2d 822 (Tex. Crim. App. 1994) (holding that reaching in and stealing fishing rods from bed of a
pickup truck was an entry and burglary because although the bed is an open area, it is clearly an interior
Toomes, 306 P.2d 953 (Cal. Ct. App. 1957), wherein it was explained that an
essential purpose of section 459 was to make it a more serious offense to break
into the interior of a car as opposed to tampering with or removal of exterior parts
unconnected with entry into the vehicle itself. See id. at 14. As in Texas, the focus
of the California decisions in analyzing the entry requirement is on whether the
defendant entered an interior section of a vehicle.
INTERIOR VS. EXTERIOR
In our decisions in Von Edwards and Stephens we have recognized that
Florida’s burglary statute provides that taking apart any portion of a conveyance
constitutes an entry. However, we have explained that the offense of burglary
requires more than an entry, and there must also be proof of the requisite statutory
intent to commit a crime within the conveyance. In this way the statute cannot be
used to punish as burglary “conduct which should be treated as larceny.” Von
Edwards at 685.
For example, in Hankins, as in this case, the State attempted to show that the
removal of the hubcaps was the act constituting the entry as well as the crime
intended to be committed therein. Although the Hankins court concluded that the
removal of the hubcaps did not constitute an entry, it further explained that
“[c]learly, the theft of hubcaps from an automobile wholly fail[ed] to establish a
prima facie case of intent ‘to commit an offense therein.’” 376 So. 2d at 286. The
Fourth District in Jones similarly held that the removal of the hubcaps does not
constitute a burglary because “[u]nder those circumstances, there is no ‘intent to
commit an offense therein’ i.e., within the vehicle.” 763 So. 2d at 1103.
As noted above, some courts have applied the statutory definition of entry as
if that was all that was required to prove a burglary. As was noted in Jones, it
appears the Word court failed to consider our holding in Von Edwards when it held
in a conclusory fashion that the “theft of the wheels and tires removed from the
automobile supply sufficient evidence of his intent to commit an offense after
entering the automobile by taking apart or removing the wheels and tires.” Word,
711 So. 2d at 1241. Clearly, the Word court relied on the same act to satisfy both
requirements of the statute, an illegal entry as well as the intent to commit a crime
within the conveyance. This analysis is inconsistent with our reasoning in Von
Edwards and Stephens. In fact, as explained by comment 3(c) to section 221.1 of
the Model Penal Code, “[t]he word ‘therein’ in Subsection (1) of the Model Penal
Code provision . . . requir[es] that the intent be to commit an offense after the entry
has been effected.”
Arguably, in some of the other cases, the courts did consider whether the
entry was merely to facilitate the commission of an offense within the vehicle. For
instance, in Bragg, lifting a hood (entry) may be seen as different from the act of
actually removing the engine (the crime intended to be committed). Similarly, in
Braswell, defendant’s sticking his hand into the bed of the pickup truck (entry) may
be distinguished from the removal of the object (the crime intended to be
committed). Although such distinctions will ordinarily not present a problem
because usually the conduct supporting the entry and the crime to be committed
therein are easily identifiable and exclusive of each other, courts must be careful not
to end the analysis once it is determined that an entry has occurred. As noted
above, such a limited analysis would render meaningless that portion of the burglary
statute requiring an intent to commit an offense within the vehicle.
In other words, a proper analysis of the offense of burglary must focus both
on the act constituting the entry and the intent to commit an offense therein. The
language of the burglary statute, as drafted by the Legislature, requires both an
entry and the requisite intent to commit a crime within the conveyance. Therefore,
it follows that the crime must be one that is capable of being committed within or
inside the vehicle. Moreover, it naturally follows that an entry into a vehicle without
the requisite intent to commit a separate crime therein is not a burglary. Thus, while
the actual penetration into any interior or enclosed area may constitute an entry,
including the removal of a portion or part of one of these areas or compartments,
an intent to remove an object or commit an unauthorized act therein after the entry
has occurred must also be established to satisfy the intent required to commit a
This interpretation naturally follows from our previous pronouncement of the
legislative intent that “the removal of a portion of the conveyance must be to
facilitate the commission of an offense within the conveyance . . . [and] not seek to
punish as burglary conduct which should be treated as larceny.” Von Edwards,
377 So. 2d at 685. Moreover, such a construction renders more meaningful the
overall scheme of the burglary statute and Judge McDonald’s observation in
Hankins that the “definition of ‘entering a conveyance’ . . . does not obviate the
necessity for alleging facts in support of an intent to commit an offense therein.”
376 So. 2d at 286. It inherently follows from this interpretation that those acts
deserving of a burglary conviction should be distinguished from those that
constitute a criminal larceny, such as the removal of an antenna, hood ornament, or
hubcap from a vehicle.
For the foregoing reasons, we quash the decision in Drew and approve the
decision in Hankins. Accordingly, we remand for further proceedings consistent
with this opinion.
It is so ordered.
HARDING, PARIENTE and LEWIS, JJ., concur.
SHAW, J., concurs in result only.
QUINCE, J., dissents with an opinion, in which WELLS, C.J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
QUINCE, J., dissenting.
The definition of conveyance as outlined in section 810.011(3), Florida
Statutes (1997), provides a meaning also for the term “to enter a conveyance”
which includes the taking apart any portion of the conveyance. A portion of the
conveyance was in fact taken apart in this case, the tires. See State v. Word, 711
So. 2d 1240 (Fla. 2d DCA 1998). Therefore, I would, consistent with the
reasoning in Word, affirm the decision of the district court in Drew v. State, 736
So. 2d 1188 (Fla. 2d DCA 1999).
WELLS, C.J., concurs.
Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions
Second District - Case No. 2D98-00877
Paula C. Coffman, Orlando, Florida,
Robert Butterworth, Attorney General, Robert J. Krauss, Senior Assistant Attorney
General, and Johnny T. Salgado, Assistant Attorney General, Tampa, Florida,