BRUCE STANLEY TOBLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1979-02-01
No. FF-438
MILLS and ERVIN, JJ., concur.
371 So. 2d 1043 Florida District Court of Appeal, First District (1979) Caution
Cited by 25 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that a prosecutorial comment on the truthfulness of a defendant's confession, even if improper, was not preserved for appeal due to the defense's failure to request a mistrial. It also held that entry into a trailer within the curtilage of a warehouse constitutes a separate burglary from the entry into the curtilage itself.


Headnotes

[1] A defendant must request a mistrial after objecting to an improper prosecutorial comment to preserve the issue for appeal.

[2] Entry into the curtilage of business premises is sufficient to constitute burglary of a structure located on those premises, even if entry is only made into a conveyance…

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Appellant was convicted of burglary and grand larceny. During closing arguments, the prosecutor commented on the truthfulness of appellant's confessio…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
McCORD, Chief Judge.

McCORD, Chief Judge.

This appeal is from conviction of appellant of three counts of burglary and two counts of grand larceny. [See Tobler v. State, 350 So. 2d 555 (Fla. 1 DCA 1977).] We affirm the convictions but remand for reconsideration of the trial court’s nonal-lowance of jail time credit in this case.

At trial, the State put into evidence a written confession given by appellant to a detective. Other evidence presented by the State corroborated this confession. Appellant presented no evidence at trial. During closing argument, appellant’s attorney attacked the reliability of the confession and claimed that it was coerced. In rebuttal, the prosecutor remarked:

“There has been no evidence that what the defendant wrote here is not the truth. The defense counsel says the defendant was coached, but not once did he say its not true, that it’s a lie, that it’s not his handwriting, that he didn’t write it.”

Appellant’s counsel objected to those remarks claiming they were a comment upon appellant’s right not to testify. The trial judge then remarked as follows:

“THE COURT: What do you want? I mean, I understand what you are saying, but what are you moving for?

MR. BETANCOURT: Your Honor, I want to record my objection.

THE COURT: Just as an objection?

MR. BETANCOURT: Yes, Your Honor, realizing what was said.”

The court overruled the objection.

Appellant first argues that the above-mentioned prosecutorial comment in closing argument constitutes reversible error. Regardless of whether or not that comment does constitute error, appellant has failed to preserve his point for appeal. See Clark v. State, 363 So. 2d 331 (Fla.1978), in which the court ruled:

“When there is an improper comment, the defendant, if he is offended, has the obligation to object and to request a mistrial. If the defendant does not want a mistrial, he may waive his objection. The trial may then proceed, but he may not again raise that objection as a point on appeal. If the defendant fails to object or if, after having objected, he does not ask for a mistrial, his silence will be considered an implied waiver. . . . ”

Two of the burglary convictions involved the alleged breaking and entering by appellant and three others of the grounds of a May-Cohen’s warehouse and their further breaking and entering of a trailer parked on the grounds where they allegedly took $9,000 worth of merchandise. The breaking into the grounds was accomplished by cutting the lock off of the gate to a fence surrounding the warehouse and, after entering the grounds, the breaking into the trailer was accomplished by cutting the door off the trailer. As to these two burglaries, appellant argues that entry into the mere curtilage of a business premises is not sufficient to constitute the offense of burglary of the structure located on those premises when entry is made only into a conveyance also located within the curtilage. Recognizing that the District Courts of Appeal of the Third and Fourth Districts have ruled otherwise, appellant urges this Court that such rulings were erroneous. See DeGeorge v. State, 358 So. 2d 217 (Fla. 4 DCA 1978), and Greer v. State, 354 So. 2d 952 (Fla. 3 DCA 1978). After considering appellant’s arguments and the cases cited, we agree with the decisions of our sister courts. DeGeorge stated it succinctly as follows:

“[A] plain reading of 810.011(1), extends curtilage to that of a structure, including a building of any kind for the purposes of defining a burglary.”

Within the foregoing point, appellant contends that even if the fenced area of May-Cohen’s is a curtilage, the only offense of burglary was that committed when the curtilage was entered; that since the trailer was also a part of the curtilage, entry into the trailer would not constitute a separate burglary. We disagree. The two are separate breakings and enterings and, therefore, are two separate offenses. Appellant’s forced entry into the fenced area was one burglary, and his later forced entry into the enclosed trailer parked within the fenced area was a second burglary.

As his final point, appellant contends that he is entitled to receive credit on the sentences imposed for 104 days he spent in the county jail. The trial judge directed that credit for those days was to be applied to appellant’s sentence for violation of parole. There is nothing in the record, however, to show that credit was given to appellant on any sentence. This cause is, therefore, remanded for the purpose of determining on the record whether the 104 days credit to which appellant is entitled has been applied to any sentence imposed upon appellant and, if not, to give appellant such credit. Such may be done without returning appellant to court.

AFFIRMED but remanded for determination of jail time credit.

MILLS and ERVIN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (12 total)

  • State v. Hamilton, 660 So. 2d 1038 (Fla. 1995)
    …e, 577 So. 2d 997 (Fla. 4th DCA 1991) (defendant’s truck went through gate and backed in through garage door); T.J.T. v. State, 460 So. 2d 508 (Fla. 3rd DCA 1984) (defendant attempted to remove window from home with fenced-in yard); Tobler v. State, 371 So. 2d 1043 (Fla. 1st DCA), cert. denied, 376 So. 2d 76 (Fla.1979) (defendant entered premises after cutting lock off gate to a fence surrounding business); DeGeorge v. State, 358 So. 2d 217 (Fla. 4th DCA 1978) (defendant removed motors from boats parked on pav…
    1 / 2
  • T.J.T. v. State, 460 So. 2d 508 (Fla. 3d DCA 1984)
    ….G. v. State, 395 So. 2d 1279 (Fla. 2d DCA 1981). . We note that proof of the stealthful entry into the curtilage of a building has been found sufficient to constitute the offense of burglary of a structure located on the premises. Tobler v. State, 371 So. 2d 1043 (Fla. 1st DCA), cert. denied, 376 So. 2d 76 (Fla.1979); DeGeorge v. State, 358 So. 2d 217 (Fla. 4th DCA 1978); Greer v. State, 354 So. 2d 952 (Fla. 3d DCA 1978).…
  • Sterling Henry v. State, 707 So. 2d 370 (Fla. 1st DCA 1998)
    …w, Mr. Henry effected an unconsented entry onto the curtilage of each of the other four sheds, so committing other burglaries, within the meaning of the statute. (The evidence did not reveal Mr. Henry’s exact route.) The decision in Tobler v. State, 371 So. 2d 1043 (Fla. 1st DCA 1979), lends no support to the State’s argument. The Tobler court held that conviction for burglary of a structure — the unconsented entry through a locked gate onto the grounds of a department store’s warehouse — did not preclude a se…

Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw