WILLIE EARL DAKES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Willie Earl Dakes was convicted of burglary of an occupied structure after entering a restricted storeroom in a retail store and taking merchandise. The court affirmed his burglary conviction, holding that a restricted-access storeroom is not part of premises open to the public, but remanded for resentencing because the storeroom was actually unoccupied and a retail store is not a dwelling, making the proper charge burglary of an unoccupied non-dwelling structure (third degree felony rather than second degree).
Although the retail store itself was open to the public, the closed storeroom with clearly restricted access was not part of the premises open to the public within the scope of section 810.02, so the burglary conviction is valid. However, because the storeroom was unoccupied and a retail store is not a dwelling, the proper charge is burglary of an unoccupied structure which is not a dwelling—a third degree felony, not a second degree felony.
[1] A storeroom with signs restricting access to authorized personnel is not considered premises open to the public for purposes of burglary statutes, even if the retail stor…
[2] A retail store is not a dwelling for the purposes of burglary statutes.
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Join FLexlaw to unlock all legal intelligence“although the store itself was open to the public, the closed storeroom to which access was clearly restricted was not part of the premises open to the public, within the scope of section 810.02.”
Establishes that restricted-access areas within a public business are not exempt from burglary liability under the statute's public premises exemption.
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Join FLexlaw to unlock all legal intelligenceDakes entered an unlocked storeroom in a retail store during business hours, where signs posted on the door stated 'authorized personnel only' and 'as…
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BASKIN, Judge.
Willie Earl Dakes entered the storeroom of a retail store during business hours and placed several hundred dollars worth of merchandise in a shopping bag. At the time Dakes entered the storeroom, the door leading to the room was unlocked; however, on the door were posted two signs: “authorized personnel only” and “associates only.” Dakes was apprehended immediately upon leaving the store and was charged and convicted of burglary of an occupied structure in violation of section 810.02, Florida Statutes (1987), and petit theft. Dakes urges reversal of his burglary conviction because section 810.02(1) specifically exempts from its purview premises which are open to the public at the time the offense is committed.
We hold that although the store itself was open to the public, the closed storeroom to which access was clearly restricted was not part of the premises open to the public, within the scope of section 810.02. See Downer v. State, 375 So. 2d 840 (Fla.1979).
Thus, we affirm Dakes’ conviction.
The record reflects that the storeroom which Dakes burglarized was unoccupied: the store detectives who observed Dakes take the merchandise were in an adjacent stockroom. When the trial court denied Dakes’ motion for judgment of acquittal notwithstanding the jury verdict but corrected the judgment to reflect that the structure was unoccupied, it erroneously classified Dakes’ crime as burglary of an unoccupied dwelling, a second degree felony. A retail store is not a dwelling. § 810.011(2), Fla.Stat. (1987).
Section 810.-02(3), Florida Statutes (1987), provides that burglary of an unoccupied structure which is not a dwelling is a felony of the third degree.
Thus, Dakes’ sentence was based on an incorrect scoresheet. We therefore remand to the trial court with directions to correct the scoresheet and to resentence Dakes.
Affirmed in part; reversed in part; remanded with directions.
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Citator
Cited By (18 total)
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Johnson v. State, 786 So. 2d 1162 (Fla. 2001)…te defense to the charge of burglary. But contrary to Johnson’s argument, the opinions in Butler and Laster were not intended to foreclose the State from proving to a jury that an area behind a counter was not open to the public. In Dakes v. State, 545 So. 2d 939 (Fla. 3d DCA 1989), the district court was faced with a similar question-whether entry into a storeroom of an open retail store [*1164] amounted to burglary. The district court concluded that “although the store itself was open to the public, the cl…1 / 2
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Johnson v. State, 737 So. 2d 555 (Fla. 1st DCA 1999)…of the store before appellant forced the other owner to the cash register at gunpoint and followed him into the prohibited area. We thus affirm appellant’s conviction for causing bodily injury during the commission of a burglary. See Dakes v. State, 545 So. 2d 939, 940 (Fla. 3d DCA 1989)(“We hold that although the store itself was open to the public, the closed storeroom to which access was clearly restricted was not part of the premises open to the public, within the scope of section 810.02.”); Florida Stand…
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Pittman v. State, 572 So. 2d 29 (Fla. 4th DCA 1990)…ge, concurring in part and dissenting in part. I agree with the conclusions reached in the majority opinion with the single exception that I would remand with directions that the burglary conviction be reduced to grand theft. See Dakes v. State, 545 So. 2d 939 (Fla. 3d DCA 1989).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Downer v. State, 375 So. 2d 840 (Fla. 1979)