Is the Sole Act of Siphoning Gasoline from a Car Burglary or Petit Theft ?
In R.E.S. v. State, 396 So. 2d 1219 (Fla. 1st DCA 1981), the court held that the sole act of siphoning gasoline from a car was not a burglary.
There, the court reasoned that the cases upholding convictions for burglary of automobiles involved entry into a compartment of a vehicle which can be entered wholly or partially by a person. See id. at 1220.
In Kirkland v. State, 142 Fla. 73, 194 So. 624 (1940), a case predating the current burglary statute, this Court stated in dicta that draining a few gallons of gas out of a storage tank was the equivalent of drawing gas out of an automobile gas tank, and as such, the conduct could only warrant a charge and conviction of petit theft.
At the time Kirkland was decided, the burglary statute did not include the "taking apart any portion" language used by the Legislature to define entry.
This requirement was added in 1974. See ch. 74-383, 30 Laws of Fla.