ERIC E. ANDERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anderson was convicted of burglary of a dwelling after entering an incomplete addition to a residence. The Fourth District affirmed, holding that although the addition was not yet habitable, it constituted part of the curtilage of the dwelling under Florida's burglary statute.
The incomplete addition was part of the curtilage of the dwelling and thus fell within the definition of a dwelling for purposes of Florida's burglary statute. The court affirmed the burglary conviction based on curtilage rather than agreeing with prior dicta suggesting an unoccupiable newly constructed home could itself be a dwelling.
[1] An unfinished addition to a residence, separated by a temporary wall and lacking a door or windows, can be considered part of the curtilage for the purposes of a burglary…
[2] Curtilage, as applied to burglary statutes, is defined by the common law as the ground and buildings immediately surrounding a dwelling and customarily used in connection…
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Join FLexlaw to unlock all legal intelligence“"Dwelling" means a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.”
Statutory definition of dwelling under Florida Statutes section 810.011(2) that controls the burglary statute analysis.
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Join FLexlaw to unlock all legal intelligenceThe victim was remodeling his home by constructing an addition separated from the main residence by a temporary wall with no access. At the time of th…
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KLEIN, J.
Appellant was convicted of burglary of a dwelling and theft. He argues that the structure he entered, which was an incomplete addition to a residence, was not a dwelling. We affirm.
The victim was remodeling his home by making it larger. At the time of the crime the addition, which was separated from the home in which the victim was living by a temporary wall containing no access, had walls and a roof, but no door or windows.
A dwelling, for purposes of our burglary statute, section 810.02, Florida Statutes (2002) is defined in section 810.011(2) as follows:
“Dwelling” means a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.
The trial court concluded that the unoccupied addition was either part of the dwelling or part of the curtilage, a term which is not defined in the statute.
In State v. Hamilton, 660 So. 2d 1038, 1039 (Fla.1995), our supreme court held that the common law definition of curtilage, “the ground and buddings immediately surrounding a dwelling and customarily used in connection with it,” must be applied to the burglary 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 burglary conviction only on the basis that the unfinished addition was part of the curtilage.1 Affirmed.
FARMER and STEVENSON, JJ., concur. . The decision as to whether to charge burglary of a structure or burglary of a dwelling should not be undertaken lightly, because if the decision turns out to be wrong, it will result in a dismissal of the charges. Small v. State, 710 So. 2d 591 (Fla. 4th DCA 1998)(Dis-missing a conviction for burglary of a structure where the burglary took place in an open carport attached to a residence. The conviction would have been affirmed if the defendant had been charged with burglary of a dwelling). If a home under construction meets the definition of a structure, but is not ready to be occupied as a dwelling, the safer course, in our opinion, would be to charge burglary of a structure. A new home, ready to be occupied, but not yet occupied, is a dwelling. Ratliff v. State, 668 So. 2d 1090 (Fla. 1st DCA 1996).
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Citator
Cited By
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Young v. State, 141 So. 3d 161 (Fla. 2013)…fied as a “dwelling.” The Munoz court alleged that this statement is dicta because the question of whether a home under construction was a dwelling was not at issue in Gonzalez. See Munoz, 937 So. 2d at 688. The Fourth District in Anderson v. State, 831 So. 2d 702, 703 (Fla. 4th DCA 2002), agreed that the Third District’s language in Gonzalez was dicta, while noting that the Fourth District “do[es] not necessarily agree with that dicta.” Id. at 703. In Anderson, the burglarized home was being remodeled in ord…
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Munoz v. State, 937 So. 2d 686 (Fla. 2d DCA 2006)…tion was a dwelling was not at issue.2 Further, Gonzalez did not address the language of the most recent Florida Supreme Court case on the issue, Perkins v. State, 682 So. 2d 1083 (Fla.1996), discussing suitability for lodging. In Anderson v. State, 831 So. 2d 702, 703 (Fla. 4th DCA 2002), the Fourth District correctly noted that the language in Gonzalez was dicta but refrained from commenting on whether a home under construction could qualify as a dwelling under the burglary statute. Therefore, this issue ha…
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Moore v. State, 879 So. 2d 62 (Fla. 4th DCA 2004)…In this case, the allegations are insufficiently specific to establish that the factual basis recited for the plea does not support the burglary of a dwelling charges. See Gonzalez v. State, 724 So. 2d 126, 127 (Fla. 3d DCA 1998); Anderson v. State, 831 So. 2d 702, 703 (Fla. 4th DCA 2002). See also State v. Hamilton, 660 So. 2d 1038, 1044-45 (Fla.1995)(requiring some form of enclosure for “curtilage” as applied to burglary statute). Burglary of a structure, when there is no one inside at the time, is a third…
Authorities Cited
- State v. Hamilton, 660 So. 2d 1038 (Fla. 1995)
- Small v. State, 710 So. 2d 591 (Fla. 4th DCA 1998)
- Edwards v. State, 668 So. 2d 1090 (Fla. 1st DCA 1996)
- Gonzalez v. State, 724 So. 2d 126 (Fla. 3d DCA 1998)