STATE OF FLORIDA, APPELLANT,
v.
DANIEL PATRICK GRANEY, APPELLEE
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Florida appealed the dismissal of a burglary charge against Graney for unlawfully entering an apartment complex laundromat with intent to commit theft. The court reversed, holding that the defendant's allegation that the laundromat was open 24 hours and had a propped-open door did not establish he fell within the statutory defense of premises being open to the public or the defendant being licensed or invited to enter.
The facts alleged do not establish that the premises were open to the public or that the defendant was licensed or invited to enter within the meaning of Section 810.02, Florida Statutes. A mere implied supposition based on 24-hour operation and an open door is insufficient to establish a prima facie defense, and therefore the motion to dismiss should have been denied.
[1] A motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) requires the defendant to allege facts that, if undisputed, would establish a prima facie case of…
[2] A defendant relying on the statutory defense that premises were open to the public or the defendant was licensed or invited to enter must specifically allege facts demons…
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Join FLexlaw to unlock all legal intelligence“the premises are at the time open to the public or the defendant is licensed or invited to enter or remain”
States the statutory defense to burglary under Section 810.02, Florida Statutes
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Join FLexlaw to unlock all legal intelligenceGraney was charged with burglary of a laundromat located at Whisper Lake Apartments. The laundromat operates 24 hours a day and was observed to have i…
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CAMPBELL, Judge.
The appellant, State of Florida, by information, charged the appellee, Daniel Patrick Graney, the defendant below, with unlawfully entering a structure with intent to commit theft therein in violation of Section 810.02, Florida Statutes (1977). That statute provides a defense to the offense charged if “the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” In an attempt to show that he came within the exclusionary language of the statute, and that, therefore, the undisputed facts did not establish a prima facie case of guilt, the appellee filed a motion to dismiss pursuant to Florida Rules of Criminal Procedure 3.190(c)(4), and alleged:
1. He is charged with the burglary of a structure located at the Whisper Lake Apartments.
2. The structure in question is the apartment complex laundromat.
3. The laundromat is open twenty-four (24) hours a day to allow access to the washing and drying machines located therein.
4. At the time the defendant was allegedly seen in the laundromat the door thereto was propped open allowing access to the room.
The state did not traverse or demur to the appellee’s motion and the court below granted the appellee’s motion to dismiss.
It is significant that the appellee did not attempt to avoid the offense by specifically alleging that he was a resident of the apartment complex, and by reason of that fact, had consent to enter, or that he was specifically invited to enter under any other basis, nor does he specifically allege that the premises were at the time open to the public, but instead seems to rely on some type of implied consent by reason of the fact that the structure in question was an apartment complex laundromat. The facts as alleged in the appellee’s motion to dismiss filed below do not of themselves establish or necessarily give rise to an implication that the premises were at the time open to the public or that the appellee was licensed or invited to enter. Since the appellee’s motion to dismiss does not demonstrate that the undisputed facts fail to establish a pri-ma facie case by bringing him within the exclusionary language of Section 810.02, Florida Statutes (1977), and a mere implied supposition is not sufficient to require the state to traverse or demur, the motion to dismiss should have been denied. Ellis v. State, 346 So. 2d 1044 (Fla.1st DCA 1977).
We, therefore, reverse the granting of the motion to dismiss and the cause is hereby remanded for further proceedings consistent with this opinion.
HOBSON, Acting C. J., and BOARD-MAN, J., concur.
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Cited By
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RAY v. State, 522 So. 2d 963 (Fla. 3d DCA 1988)…mises are open to the public is a complete defense to a burglary charge, avoiding the absurd result of State v. Shult, 380 N.W. 2d 352 (S.D.1985) (pizza thief guilty of burglary because he entered store with intent to shoplift). See State v. Graney, 380 So. 2d 500 (Fla. 2d DCA 1980); Arabie v. State, 699 P. 2d 890 (Alaska App.1985).…
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Hershell Curtis Collett v. State, 676 So. 2d 1046 (Fla. 1st DCA 1996)…emises are open to the public is a complete defense to a burglary charge, avoiding the absurd result of State v. Shult, 380 N.W. 2d 352 (S.D.1986)(pizza thief guilty of burglary because he entered store with intent to shoplift). See State v. Graney, 380 So. 2d 500 (Fla. 2d DCA 1980); Arabie v. State, 699 P. 2d 890 (Alaska App. 1985). Id. n. 6. Unfortunately, this case presents “the absurd result” referenced in Ray. Because the state presented no evidence that the motel’s alcove was not open to the public, th…
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Laster v. State, 743 So. 2d 535 (Fla. 1st DCA 1998)…are open to the public is a complete defense to a burglary charge, avoiding the absurd result of State v. Shult, 380 N.W. 2d 352 (S.D.1985[1986]) (pizza thief guilty of burglary because he entered store with intent to shoplift). See State v. Graney, 380 So. 2d 500 (Fla. 2d DCA 1980); Arable v. State, 699 P. 2d 890 (Alaska App. 1985). AFFIRMED IN PART AND REVERSED IN PART. JOANOS, ALLEN and WEBSTER, JJ„ concur.…
Authorities Cited
- Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977)