EUGENE C. BAIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's conviction for burglary must be reversed and remanded for adjudication of trespass, as there was no proof of entry into an enclosed structure.
The defendant was convicted of burglary, but the appellate court found no proof that the defendant entered an enclosed structure or its curtilage. The…
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PER CURIAM.
We reverse the defendant’s judgment and sentence for burglary, and remand with direction that he be adjudicated and sentenced for trespass, which is the relief expressly sought in appellant’s initial brief. There was no proof that the defendant entered the school cafeteria nor any curtilage, the building not having been enclosed in any manner. Hamilton v. State, 645 So. 2d 555 (Fla.2d DCA 1994); State v. Rolle, 577 So. 2d 997 (Fla. 4th DCA 1991); DeGeorge v. State, 358 So. 2d 217 (Fla. 4th DCA 1978); Fla.Std. Jury Inst. (Crim.) 135, 135-36.1
On remand, we caution the trial court against making the same errors when resentencing the defendant as it made when it originally sentenced him. When assessing prosecution costs, the trial court should consider the amount of the state’s expenses and the defendant’s ability to pay. § 939.01(5), Fla.Stat. (1993). The defendant must be afforded an opportunity to be heard and offer objections to the amount of public defender fees and costs assessed against him. § 27.56(7), Fla.Stat. (1993). Finally, the trial court may not award appellate costs before the issuance of a mandate. Anderson v. State, 632 So. 2d 132 (Fla. 4th DCA 1994).
HERSEY, GLICKSTEIN and KLEIN, JJ., concur. . The standard jury instruction for burglary defines structure as "any building of any kind, either temporary or permanent, that has a roof over it, and the enclosed space of ground and outbuildings immediately surrounding that structure. " (Emphasis added).
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Citator
Cited By
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State v. Hamilton, 660 So. 2d 1038 (Fla. 1995)…). In a recent case the Fourth District reversed a defendant’s burglary conviction because “[t]here was no proof that the defendant entered the school cafeteria nor any curtilage, the building not having been enclosed in any manner.” Bain v. State, 650 So. 2d 83, 84 (Fla. 4th DCA 1995), review granted, 659 So. 2d 272 (Fla.1995). For support the court cited, inter alia, the standard jury instructions and the district court decision in the case sub judice. STRICT CONSTRUCTION We simply cannot determine whet…
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State v. Bain, 661 So. 2d 1215 (Fla. 1995)…PER CURIAM. We have for review Bain v. State, 650 So. 2d 83 (Fla. 4th DCA 1995), in which the [*1216] district court addressed the same question we recently answered in State v. Hamilton, 20 Fla.L.Weekly S465, 660 So. 2d 1038 (Fla. Sept. 14, 1995). We have jurisdiction. Art. V, § 8(b)(3), Fla. Const. In ac…
Authorities Cited
- Valentino DeGEORGE v. State, 358 So. 2d 217 (Fla. 4th DCA 1978)
- Anderson v. State, 632 So. 2d 132 (Fla. 4th DCA 1994)
- State v. Rolle, 577 So. 2d 997 (Fla. 4th DCA 1991)
- Peeples v. State, 645 So. 2d 555 (Fla. 2d DCA 1994)
- LaBron A. Rodgers v. State, 645 So. 2d 555 (Fla. 2d DCA 1994)