State v. Bennett
| Decision Date | 25 July 1990 |
| Docket Number | No. 89-02537,89-02537 |
| Citation | 565 So.2d 803 |
| Parties | 15 Fla. L. Weekly D1941 STATE of Florida, Appellant, v. Tommy Reaben BENNETT, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Wendy Buffington, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, and Andrea Steffen, Asst. Public Defender, Bartow, for appellee.
The state appeals an order of the circuit court partially granting appellee Tommy Bennett's sworn motion to dismiss. Fla.R.Crim.P. 3.190(c)(4). The effect of the order is to reduce burglary charges against Bennett from a second degree (burglary of a dwelling) to a third degree felony (burglary of a structure). Finding the order to be based on an erroneous interpretation of the statutory definition of "dwelling," we reverse.
Bennett was one of three individuals apprehended while removing furniture from a mobile home which was located on a sales lot. This mobile home, apparently one among several models offered for sale, was fully furnished but unoccupied and not connected to utilities. The state charged Bennett with burglary of a dwelling. § 810.02, Fla.Stat. (1987). Bennett's motion to dismiss admitted that Bennett had participated in the break-in, but asserted that the structure in question did not qualify as a "dwelling" for purposes of enhancing the degree of the offense.
The common law definition of "dwelling," for purposes of a burglary prosecution, contemplated that a structure was actually occupied and not merely capable of or suitable for occupation. Smith v. State, 80 Fla. 315, 85 So. 911 (1920); Tukes v. State, 346 So.2d 1056 (Fla. 1st DCA 1977). It was generally viewed as immaterial whether the structure was a "mobile home" rather than a more traditional type of house. State v. Ryun, 549 S.W.2d 141 (Mo.App.1977). See also, Kanaras v. State, 54 Md.App. 568, 460 A.2d 61 (1983) ("minimotorhome"); Luce v. State, 128 Tex.Crim. 287, 81 S.W.2d 93 (1935) (); State v. Ebel, 92 Mont. 413, 15 P.2d 233 (1932) ("movable sheep wagon"). However, under this definition an unoccupied mobile home on a sales lot would not qualify as a "dwelling." Graybeal v. State, 228 Va. 736, 324 S.E.2d 698 (1985).
In some jurisdictions this common law definition has been abandoned to permit a broader scope of prosecution for acts analogous to our crime of residential burglary. For example, Arkansas uses the term "occupiable structure," which is defined as any structure "customarily" used for the accommodation of persons. Ark.Stat.Ann. §§ 5-39-101(1)(c), -201(a) (1987). Under this provision an accused could be prosecuted and convicted for breaking into a mobile home which was vacant, unattached to utilities, and used only for a storage facility. Julian v. State, 298 Ark. 302, 767 S.W.2d 300 (1989). The Illinois statute, Ill.Rev.Stat. ch. 38, para. 2-6(b), includes in its definition of "dwelling" unoccupied living quarters which are intended for habitation within a reasonable period of time. See People v. Pearson, 183 Ill.App.3d 72, 131 Ill.Dec. 646, 538 N.E.2d 1202, appeal denied, 127 Ill.2d 633, 136 Ill.Dec. 600, 545 N.E.2d 124 (1989) ().
Florida, too, has amended its applicable statute. § 1, Ch. 82-87, Laws of Fla. Section 810.011(2), Florida Statutes (1989) now defines "dwelling" as "a building or conveyance of any kind, either 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" (emphasis supplied ). It is undisputed that this 1982 amendment is applicable to the present case, wherein the offense is alleged to have occurred between November 12 and 13, 1988. The state argues that this revised definition is broad enough to cover a mobile home on a sales lot, because it is "designed" for eventual human habitation. We agree that the present definition of "dwelling" significantly expands the common law definition. 1 Legislative staff analysis, which suggests the 1982 enactment was prompted by concern over burglaries of "unoccupied recreational vehicle[s] or travel trailer[s]," does not unequivocally establish whether unsold mobile homes were contemplated. However, the plain meaning of the word "designed" supports the state's argument. 2
The trial court, in reducing the charge against Bennett, appears to have based its ruling exclusively upon the belief that the legislature did not intend to depart from prior case law narrowly defining "dwelling." Because we disagree with this conclusion, we cannot say as a matter of law that the state may not prosecute Bennett for residential burglary. We stop short, however, of holding that the amended statute justifies such a charge any time someone enters a structure that...
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Lauture v. U.S. Attorney Gen.
...Florida has applied § 810.02(3)(b) to a dwelling which was not occupied prior to or after the entry, see State v. Bennett , 565 So. 2d 803, 805 (Fla. 2d DCA 1990), and that application impacts whether a violation of § 810.02(3)(b) is a CIMT. See Gonzales v. Duenas-Alvarez , 549 U.S. 183, 19......
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...argue that the phrase “designed for use” can refer to the user's intent. In support of this contention, Defendants cite State v. Bennett, 565 So.2d 803 (Fla. 2d DCA 1990). In Bennett, the court considered residential burglary charges against a defendant who had stolen property from an unocc......
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