Henry v. State, 97-361
| Decision Date | 17 February 1998 |
| Docket Number | No. 97-361,97-361 |
| Citation | 707 So.2d 370 |
| Parties | 23 Fla. L. Weekly D553 Sterling HENRY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; L. Michael Billmeier, Assistant Attorney General, Tallahassee, for Appellee.
Twice convicted of burglary of a structure, Sterling Henry contends on direct appeal that once was enough. The structure in question was one of five construction sheds or trailers fenced off from the world outside, but not from each other. In support of dual convictions, the State argues: "By entering the trailer and the fenced area, Appellant entered at least two structures: the trailer and the curtilage of the other trailers." We reverse one of the convictions and remand so that the other conviction can be amended to conform to the jury's verdict.
Apprehended carrying a concrete cut-off saw near the construction site, Mr. Henry confessed to having taken the saw. To do so, he had to enter the fenced-in area in which five sheds or trailers stood in order to enter the trailer or shed that housed the saw. No evidence suggested that Mr. Henry entered either the fenced-in area or the trailer or shed more than once, or that he entered any trailer or shed other than the one from which he took the saw.
On appeal, the State argues preliminarily that we ought not reach the merits of appellant's contention that he was convicted twice for the same offense, citing Cowan v. State, 701 So.2d 353 (Fla. 1st DCA 1997), which held that the Criminal Appeal Reform Act of 1996, section 924.051, Florida Statutes (Supp.1996), foreclosed appellate consideration of an unexplained departure from sentencing guidelines never brought to the trial court's attention. In pertinent part, the Criminal Appeal Reform Act of 1996 provides:
An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.
§ 924.051(3), Fla. Stat. (Supp.1996). Trial counsel did not preserve the double conviction issue, within the meaning of section 924.051(1)(b), Florida Statutes (Supp.1996). But the contention on appeal is that two convictions for one offense violate constitutional prohibitions against double jeopardy. Both the Florida Constitution, Art. I, § 9, Fla. Const., and the federal Double Jeopardy Clause, applicable by virtue of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), forbid redundant convictions for the same offense.
A double jeopardy violation is fundamental error within the meaning of section 924.051(3), Florida Statutes (Supp.1996). See Austin v. State, 699 So.2d 314 (Fla. 1st DCA 1997). See also Novaton v. State, 634 So.2d 607 (Fla.1994).
[H]olding that a convict appealing denial of a motion filed under Florida Rule of Criminal Procedure 3.850 could raise a double jeopardy claim never previously presented, the court in State v. Johnson, 483 So.2d 420, 421 (Fla.1986) posed the question
Does a defendant waive his right to assert double jeopardy when he fails to raise it before the trial court at the time he is again placed in jeopardy?
The court answered this question "in the negative with the qualification that there may be limited circumstances when the assertion of the double jeopardy defense may be knowingly waived." Id. Here the record demonstrates no knowing waiver.
....
By itself silence does not demonstrate a free and knowing waiver of a double jeopardy claim either as to conviction or as to sentence. Arnold v. State, 578 So.2d 515 (Fla. 4th DCA 1991)(nolo plea without reservation did not waive right to challenge conviction, as well as sentence, on double jeopardy grounds), disapproved on other grounds, Novaton.
Brown v. State, 670 So.2d 965, 966-67 (Fla. 1st DCA 1995)(concurring opinion), disapproved on other grounds, State v. Craft, 685 So.2d 1292 (Fla.1996); Austin, 699 So.2d at 316(acknowledging "appl[icability of] the fundamental error rule announced in Johnson to both a defendant's convictions and sentences").
The information charged in count one that Mr. Henry "did unlawfully enter or remain in a structure, to-wit: a fenced in business premises or construction site ... with the intent to commit ... [t]heft." The second count alleged that Mr. Henry "did unlawfully enter or remain in a structure, to-wit: a shed or trailer ... with the intent to commit ... [t]heft," in violation of section 810.02(3), Florida Statutes (1995).
"Structure" means a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.
§ 810.011(1), Fla. Stat. (1995). Section 810.011(1), Florida Statutes (1995), defines structure for purposes of the burglary statute in a way that excludes any unroofed area (whether or not fenced) unless the open area comprises the "curtilage" of a building.
Originally the term "curtilage" signified only the area immediately surrounding a dwelling house, including the "cluster of buildings ... in reasonably close proximity ... which were used by the dweller." State v. Hamilton, 660 So.2d 1038, 1041 (Fla.1995). At common law, the term did not apply to places of business not appurtenant to a dwelling house:
And if the barn, stable or warehouse be parcel of the mansion-house, and within the same common fence, though not under the same roof or contiguous, a burglary may be committed therein; for the capital house protects and privileges all its branches and appurtenants, if within the curtilage or home stall.... But if I hire a shop, parcel of another man's house, and work or trade in it, but never lie there, it is no dwelling house; nor can burglary be committed therein: for by the lease it is severed from the rest of the house, and therefore is not the dwelling-house of him who occupies the other part; neither can I be said to dwell therein when I never lie there.
4 William Blackstone, Commentaries *225-26 Because buildings within the curtilage were deemed part and parcel of the dwelling house, breaking and entering any one of them constituted burglary of the dwelling house. The same concept was incorporated in the statute Florida first enacted on the subject. Ch. 4405, Laws of Fla. (1895).
As far as we have been able to discover, one dwelling house's curtilage could not overlap another's at common law. Of interest in this connection is King v. Egginton, 2 Leach 913 (1801). There, with the intent to commit larceny in the night time, Egginton and confederates were accused of breaking and entering a counting house in a "center building." The men who used the counting house in their business lived in wings off either end of the center building, in two separate households. The center building was held not to be part of the curtilage of either household (in part, however, because of the business use for which it was let). See also Hamilton, 660 So.2d at 1042-44 (Fla.1995)(collecting definitions of "curtilage").
Under section 810.02(3), Florida Statutes (1995), entering or remaining ...
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