ALEX KNIGHT, APPELLANT,

v.

THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2008-05-14

No. 3D08-368

Before COPE and SUAREZ, JJ., and SCHWARTZ, Senior Judge.

983 So. 2d 64 Florida District Court of Appeal, Third District (2008) Caution

Cited by 4 cases

Topics

Burglary Of An Occupied Dwelling Burglary Of An Unoccupied Dwelling Postconviction Relief

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Opinion of the Court

PER CURIAM.

This is an appeal from an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

After a jury trial, the defendant was found guilty of burglary of an occupied structure, and petit theft. Defendant-appellant Knight argues, and we agree, that the facts of his case are indistinguishable from those set forth in Dakes v. State, 545 So. 2d 939, 940 (Fla. 3d DCA 1989). On authority of Dakes, we conclude that the defendant’s offense of burglary of an occupied structure must be reduced to the offense of burglary of an unoccupied structure. On this issue, we reverse the order now before us and remand with directions to reduce the charge, and to conduct a new sentencing hearing.

We affirm the denial of rule 3.850 relief on the remaining claims.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Davis v. State, 988 So. 2d 1125 (Fla. 4th DCA 2008)

…a convenience store open to the public, who steals something from behind the counter, is guilty of burglary of a structure. The Johnson court cited Dakes with approval, but did not have to address the occupied/unoccupied problem. In Knight v. State, 983 So. 2d 64 (Fla. 3d DCA 2008), the third district held, under facts indistinguishable from Dakes (and the present case) that the conviction of burglary of an occupied structure must be reduced to burglary of an unoccupied structure. In addition to relying on…
Roberts v. State, 56 So. 3d 877 (Fla. 1st DCA 2011)

…the public and that the trial court denied the original motion. Thus, contrary to the postconviction court’s assertion, it would have been reasonable for defense counsel to argue that the display case was not open to the public. See Knight v. State, 983 So. 2d 64, 64 (Fla. 3d DCA 2008); Davis v. State, 988 So. 2d 1125, 1126; Dakes v. State, 545 So. 2d 939, 940 (Fla. 3d DCA 1989); see also Colbert v. State, 49 So. 3d 819, 821-22 (Fla. 4th DCA 2010); Collett v. State, 676 So. 2d 1046, 1047 (Fla. 1st DCA 1996).…

Authorities Cited

Dakes v. State, 545 So. 2d 939 (Fla. 3d DCA 1989)

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