RUBEN FRANCISCO GONZALEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ruben Gonzalez appealed his convictions for two counts of burglary and one count of grand theft arising from thefts at houses under construction. The court reversed the burglary conviction on count one (theft of an air conditioning compressor from outside a house) because the compressor was not within the curtilage of the dwelling, but affirmed the burglary conviction on count two (which included theft from inside a garage) and the grand theft conviction.
The court reversed the burglary conviction on count one because the air conditioning compressor was not located within the curtilage of the dwelling (curtilage must be enclosed by a fence or wall), and directed sentencing for the lesser offense of trespass. The court affirmed the burglary conviction on count two because the theft of paint from inside the garage supported the burglary charge. The court affirmed that unoccupied houses under construction qualify as 'dwellings' under the statute.
[1] The curtilage of a dwelling, for purposes of the burglary statute, requires an enclosed area, such as by a fence or wall.
[2] Theft of an item from an unenclosed area adjacent to a house under construction, even if connected to the house, does not constitute burglary.
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Join FLexlaw to unlock all legal intelligence“Following the Supreme Court's decision in State v. Hamilton, 660 So.2d 1038 (Fla.1995), we agree. The Hamilton Court held that in order to be considered 'curtilage' for purposes of the burglary statute, the area in question had to be enclosed — for example, by a fence or a wall.”
Establishes the legal standard for what constitutes curtilage under Florida burglary law
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Join FLexlaw to unlock all legal intelligenceGonzalez and a cohort removed air conditioning compressors from concrete pads adjacent to two houses under construction. The compressors were located …
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[*127] NESBITT, J.
Ruben Gonzalez appeals his conviction on two counts of burglary and one count of grand theft. Due to the unique facts of this case, we reverse the burglary conviction on count one, affirm the burglary conviction on count two, and affirm the grand theft conviction.
Count one of the information charged Gonzalez and cohort Luis Blanco with burglary of a dwelling; count two charged them with burglary of a second dwelling; count three charged them with grand theft. The facts supporting count one indicated that Gonzalez and Blanco had removed an air conditioning-compressor that was installed on a concrete pad adjacent to a house under construction. Although not yet occupied, and still owned by the community’s developer, the house was near completion. The concrete pad on which the air conditioning compressor was located was not under a roof or within walls, and there was no fence or wall or other enclosure surrounding the house to which the compressor belonged.
The facts surrounding count two were similar; an air conditioning compressor was removed from a similarly situated concrete pad adjacent to a second house under construction. However, Gonzalez and Blanco had also entered the garage of the second house and taken thirteen five-gallon containers of paint from the garage. Count three — the grand theft charge — concerned the unlawful taking of the compressors and/or the paint. Gonzalez was convicted as charged on all three counts of the information.
Gonzalez contends that he could not be guilty of burglary with regard to the air conditioning compressors because they were not located within the houses and were not located within the “curtilage” of the houses.1 Following the Supreme Court’s decision in State v. Hamilton, 660 So. 2d 1038 (Fla.1995), we agree. The Hamilton Court held that in order to be considered “curtilage” for purposes of the burglary statute, the area in question had to be enclosed — for example, by a fence or a wall. See Hamilton, 660 So. 2d at 1044. Here, the property surrounding each house — where the concrete pads were located — was not enclosed. Also, the compressors, though adjacent to the houses and, indeed, connected to the houses by hoses, were not within enclosures themselves.
Therefore, we vacate Gonzalez’s conviction for burglary as to count one — which involved the theft of the compressor from house number one — and remand with directions to the trial court to sentence Gonzalez on this count to the lesser included offense of trespass on property.
The burglary conviction on count two is affirmed. While the theft of the compressor from house number two — as with house number one — cannot support a burglary conviction, the theft of the paint taken from house two’s garage does support a burglary conviction. Likewise, we affirm the grand theft conviction.
Reversed and remanded as to count one, burglary; affirmed as to count two, burglary, and as to count three, grand theft.
. Gonzalez also claims that the burglary convictions cannot stand because these houses, under construction and not occupied, were not "dwellings" within the meaning of the burglary statute. We disagree. The statute defines "dwelling” as “a building of any kind ... which has a roof over it and is designed to be occupied by people lodging therein at night ....”§ 810.011(2), Fla. Stat. (1995). In our view, the houses here meet this definition. See State v. Bennett, 565 So. 2d 803 (Fla. 2d DCA 1990).
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Young v. State, 141 So. 3d 161 (Fla. 2013)…bstantial evidence to support the status of the house as a “dwelling,” and that there was no evidence that the interior of the house was in a state of ruin comparable to that described in Munoz. Id. at 1007. The Third District in Gonzalez v. State, 724 So. 2d 126, 127 n. 1 (Fla. 3d DCA 1998), without addressing this Court’s language in Perkins, noted that a home under construction but nearing completion qualified as a “dwelling.” The Munoz court alleged that this statement is dicta because the question of wh…
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Anderson v. State, 831 So. 2d 702 (Fla. 4th DCA 2002)…lary statute. The Hamilton court also held that curtilage requires some form of enclosure. We conclude that under Hamilton, the addition to the victim’s home in this case, although not yet habitable, was part of the curtilage. In Gonzalez v. State, 724 So. 2d 126, 127 n. 1 (Fla. 3d DCA 1998), the court, in dicta, suggested that a nearly completed new home, not yet occupiable, could constitute a dwelling under the burglary statute. We do not necessarily agree with that dicta and accordingly affirm this burgla…
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Munoz v. State, 937 So. 2d 686 (Fla. 2d DCA 2006)…be occupied by people lodging therein at night, and in fact had been occupied for decades. The issue is whether it still qualifies as a dwelling even though it was undergoing massive reconstruction at the time of the burglary. In Gonzalez v. State, 724 So. 2d 126, 127 n. 1 (Fla. 3d DCA 1998), the Third District noted that a home under construction but nearing completion qualified as a dwelling. However, this statement was dicta because the question of whether a home under construction was a dwelling was not…1 / 2
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- State v. Hamilton, 660 So. 2d 1038 (Fla. 1995)
- State v. Bennett, 565 So. 2d 803 (Fla. 2d DCA 1990)