414 So. 2d 516 | Fla. | 1982
This is a petition to review the decision of the Fifth District Court of Appeal, reported as Desin v. State, 404 So.2d 181 (Fla. 5th DCA 1981), in which the district court certified the following question as one of great public importance:
Does section 810.06, Florida Statutes (1979), encompass: (a) only those trespasses included within said chapter 810; or (b) any statutory trespass; or (c) any statutory or common-law trespass, when it proscribes the possession of any tool, machine or implement with intent to use or permit such to be used to commit “any burglary or trespass.”
We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. In answer to the question, we find that “trespass,” as used in section 810.-06, Florida Statutes (1979), includes only those types of unlawful interference with property which are designated by statute as crimes. Petitioner’s conviction is approved, but we cannot fully agree with the reasoning in the district court’s opinion.
The facts in the instant case are as follows. Petitioner and a codefendant were arrested when the police discovered them tampering with a newspaper vending machine. The codefendant had in his possession a coin-box which he had removed from the vending machine, and petitioner had in his possession a pair of bolt cutters which he admitted were used to sever the coin-box from the machine. Petitioner was charged with a second degree misdemeanor for molestation of a vending machine, section 877.-08(3), Florida Statutes (1979), and with a third degree felony for possession of tools with which to commit a burglary or trespass, section 810.06. The first charge was dismissed because the state failed to bring petitioner to trial within the time required by Florida Rule of Criminal Procedure 3.191(a)(1). Petitioner was found guilty of possessing burglary tools.
The district court affirmed the conviction, reasoning that, even though breaking into the vending machine would not constitute a burglary, petitioner had committed a common-law trespass which fell within the ambit of section 810.06. In reaching this result, the district court relied upon two findings. The court first determined that, in using the phrase “any ... trespass” in section 810.06, the legislature intended to include all trespass, both statutory and common-law. The court then accepted the common-law definition of “trespass” as the “unlawful interference with one’s person, property or rights.” 404 So.2d at 182.
At common law, a simple trespass upon land or personal property was not a crime; rather, it was a private wrong which was remedied by a civil action to recover damages. 3 W. Burdick, The Law of Crime § 720, at 71 (1946); see generally 3 W. Blackstone, Commentaries *209-14; W. Prosser, Handbook of the Law of Torts §§ 13-14, at 63-79 (4th ed. 1971). Although simple trespass was an element in certain common-law crimes, such as larceny,
Petitioner contends that the burglary tool statute applies only to those trespasses enumerated in chapter 810.
We find that tampering with a coin-operated vending machine, as prohibited by section 877.08, constitutes a criminal trespass. The petitioner, under the facts of this case, clearly participated in committing this unlawful act. We, therefore, approve the district court’s affirmance of the conviction for possession of burglary tools in violation of section 810.06, but we must disapprove that portion of the opinion which construes section 810.06 as applying to common-law trespass.
It is so ordered.
. W. LaFave & A. Scott, Handbook on Criminal Law § 85, at 622-30 (1972).
. See, e.g., § 812.14, Fla.Stat. (1981) (trespass and larceny with relation to utility or cable television fixtures); § 228.091, Fla.Stat. (1981) (trespass upon grounds or facilities of public schools); § 616.266 Fla.Stat. (1981) (trespass on the grounds of an authorized fair or exposition); § 581.122, Fla.Stat. (1981) (trespass on nursery stock); § 810.08, Fla.Stat. (1981) (trespass in a structure or conveyance); § 810.09, Fla.Stat. (1981) (trespass on property other
. See, e.g., § 806.13, Fla.Stat. (1981) (criminal mischief, the willful and malicious injury to any real or personal property of another); § 812.-014, Fla.Stat. (1981) (theft, obtaining or using the property of another with intent to deprive the other of the property); § 877.08, Fla.Stat. (1981) (tampering with a coin-operated vending machine).
. Section 810.08 defines and prescribes the punishment for trespass in a structure or conveyance, section 810.09 relates to trespass on property other than a structure or conveyance, and section 810.13 deals with cave vandalism and related offenses.