STATE OF FLORIDA, APPELLANT,
v.
JOHNNIE BURSTON, APPELLEE
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The court held that a carport, as described, is part of the curtilage of a dwelling for the purposes of the burglary statute.
The state charged the defendant with burglary of a dwelling for stealing a lawnmower from a carport. The carport was contiguous to the dwelling, share…
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WHATLEY, Judge.
The state appeals the dismissal of a one-count information charging Johnnie Burston with burglary of a dwelling in violation of section 810.02(3), Florida Statutes (1993). The information alleged that Burston stole a lawnmower from a carport. The sole issue in this appeal is whether the carport is part of the curtilage of the dwelling. We conclude that it is and reverse.
The carport from which the lawnmower was taken was contiguous to the dwelling. It consisted of a cement slab, a roof that was flush with the roof of the dwelling, and four aluminum poles supporting the roof. The carport shared a wall with the dwelling, and the kitchen door opened onto the carport. The carport was no longer used for parking vehicles and contained miscellaneous items, including the lawnmower that was stolen.
The instructive case on this issue is State v. Hamilton, 660 So. 2d 1038, 1044 (Fla.1995), wherein the supreme court stated: “We conclude that such a construction here requires us to carry forward the common law requirement of some form of an enclosure in order for the area surrounding a residence to be considered part of the ‘curtilage’ as referred to in the burglary statute.” The operative words are “some form of an enclosure.” The carport in question constitutes a sufficient form of enclosure so as to be part of the curtilage of the dwelling.
Accordingly, the order dismissing the charge of burglary of a dwelling is reversed, and this cause is remanded for further proceedings.
FRANK, A.C.J., and NORTHCUTT, J., concur.
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Small v. State, 710 So. 2d 591 (Fla. 4th DCA 1998)…tant case as “curtilage” of the house where, as here, there is no fence or other enclosure whatsoever. Accordingly, we reverse the trial court, and dismiss the charge of burglary of a structure. The seemingly contradictory case of State v. Burston, 693 So. 2d 600 (Fla. 2d DCA 1997), is distinguishable. In Burston, the Second District reversed the dismissal of a charge of burglary of a dwelling, finding that a carport similar to the instant one constituted curtilage. However, Burston involved a charge of burg…
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Henderson v. State, 810 So. 2d 999 (Fla. 4th DCA 2002)…eaning of the burglary statute. The defense was aware of the proposed amendment the Friday before the trial was to begin. This was adequate time for the defense to confront the amended charge. Cursory research would have uncovered State v. Burston, 693 So. 2d 600, 601 (Fla. 2d DCA 1997), where the second district held that a carport contiguous to a dwelling consisting of “a cement slab, a roof that was flush with the roof of the dwelling, and four aluminum poles supporting the roof’ was part of the curtilage…
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Ferrara v. State, 19 So. 3d 1033 (Fla. 5th DCA 2009)…copper tubing attached to the outside air conditioner because the carport where the air conditioner is located is neither an “attached porch,” nor within the curtilage of the home. Ferrara asserts that the trial court’s reliance on State v. Burston, 693 So. 2d 600 (Fla. 2d DCA 1997), and Small v. State, 710 So. 2d 591 (Fla. 4th DCA 1998) in denying his motion was error. In Burston, the Second District Court of Appeal determined that an attached carport, similar to the carport in this case, constituted part of…
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- State v. Hamilton, 660 So. 2d 1038 (Fla. 1995)