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396 So. 2d 1219

Docket Nos. UU-232, UU-233.

RES v. State

R. E. S., a Child, and H. A. T., Jr., a Child, Appellants, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided April 22, 1981.

District Court of Appeal of Florida · decided 1981-04-22

Key passage — most relied on by later courts

“involved the entry into a compartment of a vehicle which can be entered either wholly or partially by a person; e.g., engine and passenger compartments, trunks, etc.”

quoted by 2 later decisions, including 763 So. 2d 1101 - Jones v. State, State v. Muqqddin

“(1) "Burglary" means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, ...”

quoted by 1 later decision, including Anderson v. State

Relies on 376 So. 2d 285 - State v. Hankins · Kirkland v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1981-04-22

How this case has been cited

Cited by 9 later decisions — most recently August 2012

9 state decisions

401981199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Thomas Presnell, Jr., Asst. Public Defender, Tallahassee, for appellants.

¶2Jim Smith, Atty. Gen., and Carolyn Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.

¶3THOMPSON, Judge.

¶4The appellants were charged with and convicted of burglary of an automobile. On appeal, they contend that the act of siphoning gasoline from an automobile will not support a charge of or conviction for burglary, which is defined as "entering or remaining *1220 in a structure or a conveyance with the intent to commit an offense therein... ." § 810.02(1), Fla. Stat. We agree and reverse.

¶5The appellants were apprehended as they attempted to siphon gasoline from two (2) cars. They were charged with burglary of a conveyance under § 810.02, Fla. Stat., and petit theft under § 812.014(2)(c), Fla. Stat. After the trial court denied their motions to dismiss the burglary charges, the appellants entered pleas of no contest to the burglary and petit theft charges. They specifically reserved the right to appeal the Order denying their motions to dismiss the burglary charges.

¶6Our research has not revealed the existence of any Florida decision which has held that siphoning gasoline from an automobile constitutes burglary of an automobile. We recognize that there are cases upholding convictions for the burglary of automobiles. However, each of those cases involved the entry into a compartment of a vehicle which can be entered either wholly or partially by a person; e.g., engine and passenger compartments, trunks, etc. Cf. State v. Hankins, 376 So.2d 285 (Fla. 5th DCA 1979) (where the court affirmed the trial court's dismissal of burglary charge against a defendant who had stolen automobile hubcaps.) A more analogous case is Kirkland v. State, 142 Fla. 73, 194 So. 624, 625 (1940), where the Florida Supreme Court reversed a burglary conviction for siphoning gasoline out of a large gasoline storage tank. The court stated that

The evidence showed that the offense, if any, was committed by drawing a few gallons of gasoline out of a storage tank. The same offense would have been committed if the gasoline had been so drawn out of an automobile gasoline tank.
The most that could have been warranted under the facts would have been a charge and conviction of petit larceny. (emphasis supplied)

¶7We find Kirkland to be controlling in the present case, and therefore we reverse the trial court's Order denying the appellants' motions to dismiss the burglary charges pending against them.

¶8LARRY G. SMITH, J., and OWEN, WILLIAM C., Assoc. Judge (Ret.), concur.

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