DARRELL LEVON HARRELL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a conviction for burglary must be reversed if the area entered was open to the public, regardless of the defendant's intent.
Defendant reached into a public Metro Bus, took passes from the driver's area, and was convicted of burglary and theft. The bus was open to the public…
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PER CURIAM.
Defendant appeals from a judgment of conviction for burglary. For the reasons that follow, we reverse.
Witnesses observed defendant reach into a Metro Bus that was boarding passengers. He had extended his arm through the driver’s side window into the area where the bus driver sits, and had taken a packet of Metrorail passes. He was caught by police, who recovered the passes. He was tried and found guilty of burglary and theft.
We must reverse the burglary conviction on the authority of Miller v. State, 733 So. 2d 955 (Fla.1998). In Miller, the Florida Supreme Court held that when determining whether a burglary occurred, “the only relevant question is whether the premises were .open to the public at the time the defendant entered or remained with the intent to commit an offense therein.” Id. at 957. Moreover, the court also explicitly held that an area behind a store counter is likewise open to the public if the store itself is open to the public. See State v. Laster, 735 So. 2d 481 (Fla.1999); State v. Butler, 735 So. 2d 481 (Fla.1999).
There is no dispute in this case that the Metro Bus was open to the public; in fact, passengers were in the process of boarding. The State failed to elicit any evidence whatsoever that the bus driver’s area was closed off to the public. There is no legal or conceptual difference between a store counter in an area open to the public, and a bus driver’s seating area in a conveyance that is open to the public. Had the State adduced any evidence that the driver is somehow insulated or physically separated in a compartment or section forbidden to the public, the conviction would stand. Under Miller, however, the conviction must be reversed.
REVERSED.
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Johnson v. State, 3 So. 3d 412 (Fla. 3d DCA 2009)…e Court has held that in a burglary case, “if a defendant can establish that the premises were open to the public, then this is a complete defense.” Miller v. State, 733 So. 2d 955, 957 (Fla.1998) (emphasis in original); see [*415] Harrell v. State, 765 So. 2d 962, 963 (Fla. 3d DCA 2000). This rule is subject to the qualification that if in committing the crime, the defendant entered a portion of the premises which was not open to the public (which can include the area behind the counter), then a burglary has…
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Wiley Walton v. State, 777 So. 2d 1170 (Fla. 3d DCA 2001)…ls his convictions and sentences after he robbed a retail store. We reverse on the conviction for armed burglary, because the incident occurred while the store was open to the public. See Miller v. State, 733 So. 2d 955 (Fla.1998); Harrell v. State, 765 So. 2d 962 (Fla. 3d DCA 2000). The remaining [*1171] convictions and sentences are affirmed in all respects. Reversed in part; affirmed in part.…
Authorities Cited
- Miller v. State, 733 So. 2d 955 (Fla. 1998)
- State v. Laster, 735 So. 2d 481 (Fla. 1999)