JACOBS v. State of Fla.

Decision Date05 August 2010
Docket NumberNo. 1D09-1992.,1D09-1992.
Citation41 So.3d 1004
PartiesJames JACOBS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

Nancy A. Daniels, Public Defender and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

CLARK, J.

James Jacobs was convicted as charged with burglary of a dwelling in violation of section 810.02(3), Florida Statutes. The charges resulted from the events of July 23, 2008, when Appellant and another man were arrested for removing aluminum siding from the walls of a vacant house. The back yard was bounded by fences, but there was a gap in the fence for the driveway. The house was built in 1912 and had been the family home until 1996, when it was damaged by a fire. The house has not been lived in since the fire, but the owner has slowly renovated the house in the intervening years.

On appeal, Jacobs challenges the trial court's denials of his motions for judgment of acquittal. While he concedes on appeal that the State proved that he removed aluminum siding from the exterior of the structure, he asserts the evidence was not legally adequate to support the charge of burglary of a dwelling because the State failed to prove the elements of "dwelling" as defined in section 810.011(2) Florida Statutes.1 Specifically, Appellant argues that the State failed to present sufficient proof that he entered the curtilage of the building and that the building remained suitable for lodging by people. We disagree and affirm.

The question presented by a motion for judgment of acquittal is "whether the evidence is legally adequate to support the charge." Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001). As stated in Jackson v. State, 18 So.3d 1016, 1025 (Fla.2009):

If the State presents direct evidence, which the State did here, the trial court's determination will be affirmed if the record, viewed in the light most favorable to the State, contains competent, substantial evidence supporting each element of the offenses.... The trial court should not grant a motion for judgment of acquittal "unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law."

(citations omitted).

The evidence presented by the State supporting the charge that Appellant entered the curtilage of the house included the property owner's testimony describing the fencing on three sides of the home, the opening for the driveway, and the low-walled "stoop" in the front of the house. Photographs showing fencing were admitted into evidence, and the next-door neighbor testified that the man he saw closest to the house was "inside the fences." The Florida Supreme Court has held that "some form of an enclosure" is required to establish curtilage of a dwelling or structure. State v. Hamilton, 660 So.2d 1038, 1044 (Fla.1995). The enclosure need not be continuous and an ungated opening for ingress and egress does not preclude a determination that the yard is included in the curtilage of the house. Chambers v. State, 700 So.2d 441 (Fla. 4th DCA 1997). The State presented sufficient evidence that the yard in this case was delineated by some form of enclosure and the trial court's denial of the motion for judgment of acquittal on this point was not error.

The State's evidence that the building qualified as a dwelling consisted of the owner's testimony that the house has a roof over it, has floors and walls, was designed to be occupied by people lodging therein at night, that such lodging took place until the fire in 1996, and that the house was equipped with plumbing and electric utilities which were not turned on because the home was unoccupied. The fact that the home had been unoccupied for years and remained so at the time of the crime does not rule out the building's status as a "dwelling" for purposes of the burglary statute. As stated by the Florida Supreme Court: "the legislature has extended broad protection to buildings or conveyances...

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12 cases
  • People v. Burkett
    • United States
    • California Court of Appeals Court of Appeals
    • 15 Octubre 2013
    ...Annotated section 810.02 (burglary is “Entering a dwelling ... with the intent to commit an offense”; construed in Jacobs v. State (Fla.Dist.Ct.App.2010) 41 So.3d 1004 [the fact that the home had been unoccupied for years and remained so at the time of the crime does not rule out the buildi......
  • Lauture v. U.S. Attorney Gen.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 17 Marzo 2022
    ...a structure constitutes a dwelling [under § 810.011(2) ]." Young , 141 So. 3d at 166 (citation omitted). See also Jacobs v. State , 41 So. 3d 1004, 1006–07 (Fla. 1st DCA 2010) (holding that a jury could reasonably find that a vacant home under renovation, with roof and walls and equipped wi......
  • United States v. Perry
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 6 Julio 2017
    ...ibid ., or enters an area fenced on three sides, with a "low-walled ‘stoop’ " in front and an opening for a driveway, Jacobs v. State , 41 So.3d 1004, 1006 (Fla. App. 2010). This explains why the Supreme Court in James deemed Florida burglary broader than generic burglary, which, as noted, ......
  • Lauture v. U.S. Attorney Gen.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 17 Marzo 2022
    ...law with respect to dwellings. We could attempt to determine ourselves whether Bennett (by itself or in conjunction with cases like Young and Jacobs) satisfies Mr. Lauture's burden of demonstrating "realistic probability" that Florida will apply his statute of conviction, § 810.02(3)(b), to......
  • Request a trial to view additional results
1 books & journal articles
  • Crimes
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • 30 Abril 2021
    ...denies a JOA. (See this case for discussion of when a damaged house is no longer a “dwelling” for burglary purposes.) Jacobs v. State, 41 So. 3d 1004 (Fla. 1st DCA 2010) Defendant obtained the key to a rental home without permission of the owner and used the home for three days with his gir......

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