Burglary

It is a Burglary to do the following:

REMOVING WHEELS AND TIRES OF CAR, State v. Word, 711 So.2d 1240(Fla. 2^nd DCA 1998)

TAKING PROPERTY FROM OPEN BED OF PICK-UP TRUCK, Braswell v. State, 671 So.2d 228(Fla. 1^st DCA 1996)

LIFTING RADIATOR FROM ENGINE COMPARTMENT, Anderson v. State, 415 So.2d 829(Fla. 3^rd DCA 1982)

TAKING STARTER FROM ENGINE COMPARTMENT, State v. Harvey, 403 So.2d 630(Fla. 2^nd DCA 1981)

TOOK BATTERY FROM HOOD OF CAR, Bragg v. State, 371 So.2d 1082(Fla. 4^th DCA 1979)

 

It is not a burglary to do the following:

 

SIPHONING GAS FROM CAR, R.E.S. v. State, 386 So.2d 1219(Fla. 1^st DCA 1981)

STEALING HUBCAPS, Drew v. State, 773 So.2d 46 (Fla. 2000)

 

Below are the Jury Instructions for burglary crimes.

 

13.1 BURGLARY

§ 810.02, Fla. Stat.

 

Give if the information charges entering with the intent to commit an offense:

To prove the crime of Burglary, the State must prove the following [two] [three] elements beyond a reasonable doubt:

1.       (Defendant) entered a [structure] [conveyance] owned by or in the possession of (person alleged).

2. At the time of entering the [structure] [conveyance], (defendant) had the intent to commit [an offense] [(the crime alleged)] in that [structure] [conveyance].

The offense intended cannot be trespass or burglary.

 

Give element 3 only if defendant meets his or her burden of production that he or she had an invitation or license to enter, or that the premises were open to the public.  See State v. Hicks, 421 So. 2d 510 (Fla. 1982), and State v. Waters, 436 So. 2d 66 (Fla. 1983).

 

3. [(Defendant) was not [licensed] [invited] to enter the [structure] [conveyance].]  [The premises were not open to the public at the time of the entering.]

 

Give if applicable.

If the [license] [invitation] to enter was obtained by (defendant’s) trick or fraud or deceit, then the [license] [invitation] to enter was not valid.

 

Give if applicable.

If (defendant) entered premises that were open to the public, but then entered an area of the premises that [he] [she] knew was not open to the public, (defendant) committed a burglary if [he] [she] entered that non-public area with the intent to commit [an offense] [(the crime alleged)] in that non-public area.

Give if applicable.  § 810.07 Fla. Stat.

You may infer that (defendant) had the intent to commit a crime inside a [structure] [conveyance] if the [entering] [attempted entering] of the [structure] [conveyance] was done stealthily and without the consent of the owner or occupant.

 

Give if applicable.

The entry necessary need not be the whole body of the defendant. It is sufficient if the defendant, with the intent to commit a crime, extends any part of [his] [her] body into the [structure] [conveyance].

 

Give if the information charges remaining with the intent to commit an offense:

To prove the crime of Burglary, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) had permission or consent to enter a [structure] [conveyance] owned by or in the possession of (person alleged).

2. (Defendant), after entering the [structure] [conveyance], remained therein

 

Give 2a, 2b, or 2c as applicable.

a. surreptitiously and with the intent to commit [an offense] [(the crime alleged)] inside the [structure] [conveyance].

b. after permission to remain had been withdrawn and with the intent to commit [an offense] [(the crime alleged)] inside the [structure] [conveyance].

c. with the intent to commit or attempt to commit a [forcible felony] [(the forcible felony alleged)] inside the [structure] [conveyance].

 

The offense intended cannot be trespass or burglary.  Forcible felonies are listed in § 776.08 Fla. Stat.

 

Proof of intent.

The intent with which an act is done is an operation of the mind and, therefore, is not always capable of direct and positive proof.  It may be established by circumstantial evidence like any other fact in a case.

Even though an unlawful [entering] [remaining in] a [structure] [conveyance] is proved, if the evidence does not establish that it was done with the intent to commit [an offense] [(the crime alleged)], the defendant must be found not guilty of burglary.

Proof of possession of stolen property.

Proof of possession by an accused of property recently stolen by means of a burglary, unless satisfactorily explained, may justify a conviction of burglary if the circumstances of the burglary and of the possession of the stolen property convince you beyond a reasonable doubt that the defendant committed the burglary.

Definitions; give as applicable.

§ 810.011(1), Fla. Stat.

“Structure” means any building of any kind, either temporary or permanent, that has a roof over it, and the enclosed space of ground and outbuildings immediately surrounding that structure.

§ 810.011(3), Fla. Stat.

“Conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft or sleeping car; and to enter a conveyance includes taking apart any portion of the conveyance.

With an assault.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) assaulted any person.  An assault is an intentional and unlawful threat, either by word or act, to do violence to another, at a time when the defendant appeared to have the ability to carry out the threat and [his] [her] act created a well-founded fear in the other person that the violence was about to take place.

 

With a battery.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) battered any person.  A battery is an actual and intentional touching or striking of another person against that person’s will or the intentional causing of bodily harm to another person.

 

While armed.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) was armed or armed [himself] [herself] within the [structure] [conveyance] with [explosives] [a dangerous weapon].

 

Definitions.  Give as applicable.  § 790.001(5), Fla. Stat.  See exceptions in § 790.001(5)(a)-(d), Fla. Stat.

“Explosive” means any chemical compound or mixture that has the property of yielding readily to combustion or oxidation upon application of heat, flame, or shock, including but not limited to dynamite, nitroglycerin, trinitrotoluene, or ammonium nitrate when combined with other ingredients to form an explosive mixture, blasting caps, and detonators.

A “dangerous weapon” is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.  It is not necessary for the State to prove that the defendant intended to use or was willing to use the weapon in furtherance of the burglary in order for a weapon to constitute a “dangerous weapon.”

 

To “arm” oneself during the course of a burglary includes possessing a firearm, whether loaded with ammunition or not, at any time during the course of committing the burglary.

 

Structure or conveyance is a dwelling.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether the [structure] [conveyance] [entered] [remained in] was a dwelling.

 

Definition.  Give as applicable.

“Dwelling” means a building [or conveyance] of any kind, whether such building [or conveyance] is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the enclosed space of ground and outbuildings immediately surrounding it.  For purposes of burglary, a “dwelling” includes an attached porch or attached garage.

 

Human being in structure or conveyance.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, there was another human being in the [structure] [conveyance], at the time [he] [she] [entered] [remained in] the [structure] [conveyance].

 

Dwelling or structure with use of motor vehicle or damage.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) entered a [dwelling] [structure] and

1.       used a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense, and thereby damaged the [dwelling] [structure].

or

 

2.       caused damage to the [dwelling] [structure] [property within the [dwelling] [structure]], in excess of $1,000.

 

Authorized emergency vehicle.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether the conveyance [entered] [remained in] was an authorized emergency vehicle.

 

Definition.  See § 316.003, Fla. Stat.

An “authorized emergency vehicle” is [a vehicle of the fire department (fire patrol) or police] [an ambulance or emergency vehicle of [municipal departments] [public service corporations operated by private corporations] [the Department of Environmental Protection, Health, or Transportation] [Department of Corrections]] that is designated or authorized by the respective department, chief of police of an incorporated city, or sheriff of a county.

 

State of emergency.

The definitions of structure, dwelling, and conveyance are different for counties where a state of emergency has been declared under chapter 252.  See § 810.011(1), (2), and (3), Fla. Stat.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether

 

1.       the burglary was committed within a county that was subject to a state of emergency that had been declared by the governor under chapter 252, the “State Emergency Management Act,”

 

and

 

2.       the perpetration of the burglary was facilitated by conditions arising from the emergency.

 

Definition.

The term “conditions arising from the emergency” means civil

unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel.

 

§ 810.011(4), Fla. Stat.

An act is committed “in the course of committing” if it occurs in the attempt to commit the offense or in flight after the attempt or commission.

ion.