Court Explains Proximity Requirement in Possession of Burglary Tools Case

In Carbone v. Florida, the Fourth District Court of Appeal explains that in order for a defendant to be convicted of possession of burglary tools, the state must show that the instruments in question were close enough at hand for the defendant to actually use them.

Joseph Carbone was arrested near West Palm Beach and charged with attempted burglary after he allegedly approached a house, knocked on the door, and tried to open it with a handkerchief wrapped around his hand. He became startled when the home’s owner approached from inside and asked Carbone what he was doing. Carbone claimed to the owner that he was looking for a person who did not live at the house. He then retreated to his car and took off.

The owner called the police, who arrested Carbone near the housing development’s exit. Officers searched the car and found tools, based on which the state also charged Carbone with possession of burglary tools. Following the trial, Carbone was convicted on both charges.

On appeal, however, the Fourth District reversed the burglary tools possession conviction, finding that the evidence was not sufficient to support it.

Florida law makes it a felony to possess a tool, machine or instrument with the intent to use it to commit a burglary or other trespass. The court explained that in order to prove the crime, the prosecution must show that the person charged intended to commit a burglary or trespass, had a tool, machine, or instrument in his possession that he intended to use for the trespass and that he “did some overt act toward the commission of a burglary or trespass.”

In this case, the state failed to show that the alleged burglary tools were in Carbone’s possession at the time he attempted to enter the house. “According to the homeowner, the only item that Carbone possessed when he approached the house was a handkerchief,” the court explained.

In a 1995 decision in Burke v. State, Florida’s First District Court of Appeal overturned a burglary tools possession conviction for a defendant who drove past a restaurant several times – apparently “casing the joint” – before parking his car at a motel two blocks or more away and walking to the restaurant to attempt to burglarize it. The court, in that case, ruled that the defendant could not be convicted of burglary tool possession for a blow torch and other items found in the car because it was too far away from the restaurant at the time he attempted to break in.

Similarly, Carbone’s items were in the car, and therefore not readily available to him at the time, according to the court. Thus, there was no evidence that Carbone intended to use them to enter the house.

The court nevertheless upheld Carbone’s conviction for attempted burglary.

A burglary-related criminal charge is a serious felony. A conviction can significantly hinder your future employment opportunities, reputation, and future. If you are currently facing a burglary charge in Florida, the North Florida criminal defense lawyers at Canan Law can provide you with aggressive, competent, and high-quality representation.

At Canan Law, our St. Augustine criminal attorneys represent defendants in courts located throughout the region, including in St. Augustine, Jacksonville, Ponte Vedra, Green Cove Springs, and Palatka.

Call us or stop by our offices at 43 Cincinnati Avenue in downtown St. Augustine if you have any questions about a pending criminal matter.


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