Mills v. StateMills v. State
Appellant was convicted by a jury of first degree burglary and he appeals, contending that the evidence is legаlly insufficient to sustain the higher degree of the crime. We affirm.
Burglary of a dwelling is normаlly a felony of the second degree, but
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 thаt point appellant had the ability to load the gun, he made no attemрt to do so until he and his companion had left the house. They later loadеd the shotgun and test fired it.
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).
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 infоrm us if the gun involved was loaded.
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 unloadеd, 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.
In State v. Dopson, 323 So.2d 644 (Fla. 4th DCA 1975), the Fоurth District Court of Appeal rejected the argument that the theft of a loаded 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 loadеd pistol is a dangerous weapon and to take possession thereоf is to arm oneself.” Id. at 645.
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 dоes not resolve the issue. We must determine if a burglar arms himself within the meaning of the
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 aftеr 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 cоnsidered armed. Is he any less armed merely because he carries the shеlls separate from the weapon? Would he be less armed if he had brought thе shotgun or another firearm with him, keeping the shells handy in his pocket? Once the shоtgun and the shells were united in appellant‘s possession, he had the caрacity to use the weapon by the mere expediency of inserting onе 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.
The judgment of conviction is AFFIRMED.
FRANK D. UPCHURCH, Jr., and COWART, JJ., concur.