Al's Legal Corner - Did You Know?

Question: Can a person actually be prosecuted for Possession of Burglary Tools?

Answer: Yes, as there actually is a charge called Possession of Burglary Tools. Florida Statute 810.06 makes it unlawful for a person to have in his or her possession any tool, machine, or to implement with the intent to use the tools or machines to commit a burglary or a trespass. It is also illegal to allow others to use the tools for the actual burglary. Such is a 3rd Degree felony, punishable by up to five years in prison or up to five years of probation. Likewise, a person will face up to $5,000 in Fines, not including Court Costs.

So, what does this actually mean? Well, the State has to prove beyond all reasonable doubt that the Defendant intended to commit a burglary or trespass, that the Defendant possessed said burglary tool, and that the Defendant took some overt act towards committing the burglary or trespass. Again, remember that one can still be in trouble even if a different person actually used the tool(s) to commit the burglary or trespass. Likewise, people often look at this statute as an intent statute, as in, even if you do not complete the actual burglary or trespass, you can still be prosecuted, as the statute and jury instructions do not require the State prove an actual burglary or trespass occurred, but rather only that an overt act towards completing such took place.

In order for an object to constitute a burglary tool, the prosecution must show that the Defendant used or actually intended to use the object to commit a burglary or trespass. See Calliar v. State, 760 So. 2d 885, 886-87 (Fla. 1999). Additionally, a conviction cannot be sustained upon a mere showing that the Defendant possessed the tool to commit some other offense, such as theft, once the burglary or trespass had already occurred. Id. at 887-88. An example of this statute in action is outlined in a case known as Latimore v. State, 753 So.2d 690, 691 (Fla. 4th DCA 2000). In such, the Defendant was seen, at night, trying to remove a radio from the dashboard of a vehicle. There was no evidence that he had used the flashlight in any way in attempting to commit burglary or trespass. The Fourth District held that, in the absence of proof as to the use or intended use of the flashlight, a conviction for Possession of Burglary Tools could not be sustained.

So, what is a burglary tool? Common household objects, which serve a lawful or dual-use purpose, may be classified as burglary tools if the evidence establishes that they are used or intended to be used to commit a burglary or trespass. Green v. State, 604 So.2d 471 (Fla., 1992). Bolt cutters, screwdrivers, and other household items are some of the most common examples. Defenses to such will include a lack of intent by the Defendant to commit a burglary or trespass, or that the burglary tools were not in the same physical location as the Defendant. Additionally, a lack of evidence that the tools were actually used in the commission of a burglary or trespass can be a defense, as can the lack of even an overt act towards the commission of a burglary or trespass. It is not enough for the State to merely rely upon circumstantial evidence.

If you have been charged with possession of burglary tools, an attorney is critical for identifying legal and factual defenses that may be used in your case. Call my office immediately, as we are only digits away, 24 hours a day.

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