06/10/81 MILLS v. STATE
[Editor's note: footnotes (if any) trail this opinion]
[1] COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
[2] GREGORY MILLS, Appellant, v. STATE OF FLORIDA, Appellee
[3] Docket No(s). 80-269
BLUE BOOK CITATION FORM: 1981.FL.1798 (http://www.versuslaw.com)
[4] Date Released: June 10, 1981
[5] Appeal from the Circuit Court for Seminole County, Roger F. Dykes,
Judge.
[6] Rehearing Denied July 7, 1981.
[7] APPELLATE PANEL
[8] Before ORFINGER, J. UPCHURCH, F., and COWART, JJ., concur.
[9] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ORFINGER
[10] Appellant was convicted by a jury of first degree burglary and he
appeals, contending that the evidence is legally insufficient to sustain the
higher degree of the crime. We affirm.
[11] Burglary of a dwelling is normally a felony of the second degree, but
section 810.02(2)(b), Florida Statutes (1979), makes it a felony of the
first degree when the perpetrator is armed or arms himself during the
burglary.1
[12] The evidence reveals that during the course of the burglary appellant's
co-participant found a shotgun in the burglarized home, and appellant found
a box of shotgun shells. While still in the home, appellant took possession
of the shotgun. While at that point appellant had the ability to load the
gun, he made no attempt to do so until he and his companion had left the
house. They later loaded the shotgun and test fired it.
[13] Appellant contends that an unarmed burglary, a second degree felony,
cannot be elevated to a felony of the first degree when the evidence shows
that the perpetrator steals an unloaded gun in the course of the crime. He
relies on Wilson v. State, 378 So.2d 1258 (Fla. 1st DCA 1979), quashed on
other grounds 395 So.2d 520 (Fla.1981), and Sanders v. State, 352 So.2d 1187
(Fla. 1st DCA 1977), cert. denied 362 So.2d 1056 (Fla.1978).
[14] In both Wilson and Sanders, the court commented that the mere showing
of a theft of a gun after entering a structure, standing alone, is
insufficient to establish burglary armed with a dangerous weapon. There is
nothing in either opinion to inform us if the gun involved was loaded.
[15] Other courts considering analogous questions have sustained the charge.
In Fowler v. State, 375 So.2d 879 (Fla. 2d DCA 1979), the court affirmed the
conviction of the crime of armed burglary where the appellant was caught in
the act of burglarizing the house while in the possession of a shotgun and a
pistol belonging to the victim of the burglary. At the time appellant took
the weapons, they were unloaded, but at the time of his apprehension, both
were loaded. The court noted the holding in Sanders, but also noted the
language in that case that the theft of a gun, standing alone, did not
elevate the degree of the crime.
[16] In State v. Dopson, 323 So.2d 644 (Fla. 4th DCA 1975), the Fourth
District Court of Appeal rejected the argument that the theft of a loaded
pistol during the commission of a breaking and entering without any further
showing of intent or willingness to use such weapon in furtherance of the
crime does not constitute armed burglary. The appellant had stolen a loaded
pistol which belonged to the owner of the burglarized dwelling. The court
reasoned: "A loaded pistol is a dangerous weapon and to take possession
thereof is to arm oneself." Id. at 645.
[17] In agreeing with Fowler and Dopson, as we do, we do not necessarily
disagree with Sanders, because the latter case does not advise us if the
weapon was loaded when in the possession of the burglar. But agreeing with
Fowler and Dopson does not resolve the issue. We must determine if a burglar
arms himself within the meaning of the statute when, during the course of a
burglary, he steals an unloaded firearm and the shells that fit it, although
he does not load the weapon while he is in the house. We hold that under
these facts he has armed himself.
[18] It is clear that under the facts of this case, as found by the jury,
appellant had the ability at any time during the burglary and after he had
possession of the shotgun and the shells, to insert the shells and make use
of the weapon. Under Fowler and Dopson, if he had loaded the weapon, he
would be considered armed. Is he any less armed merely because he carries
the shells separate from the weapon? Would he be less armed if he had
brought the shotgun or another firearm with him, keeping the shells handy in
his pocket? Once the shotgun and the shells were united in appellant's
possession, he had the capacity to use the weapon by the mere expediency of
inserting one or more shells, and thereby commit the violent act the statute
seeks to proscribe. For the purpose of this statute he had thus armed
himself.
[19] The judgment of conviction is AFFIRMED.
[20] FRANK D. UPCHURCH, Jr., and COWART, JJ., concur.
***** BEGIN FOOTNOTE(S) HERE *****
[21] *fn1 Section 810.02(2): Burglary is a felony of the first degree ...
if, in the course of committing the offense, the offender: (b) is armed, or
arms himself within such structure, with explosives or a dangerous weapon.
***** END FOOTNOTE(S) HERE *****
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