State v. Hamilton
| Decision Date | 14 September 1995 |
| Docket Number | No. 84783,84783 |
| Citation | 660 So.2d 1038 |
| Parties | 20 Fla. L. Weekly S465 STATE of Florida, Petitioner, v. Shane D. HAMILTON, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen.; Robert J. Krauss, Senior Assistant Attorney
General, Chief of Criminal Law, and William I. Munsey, Jr. and Scott A. Browne, Assistant Attorneys General, Tampa, for Petitioner.
Mark King Leban of the Law Offices of Mark King Leban, P.A., Miami; and Terrence J. McWilliams, Coconut Grove, for Respondent.
We have for review a decision of the Second District Court of Appeal passing upon the following question certified to be of great public importance:
DOES FLORIDA'S BURGLARY STATUTE REQUIRE THAT THE "CURTILAGE" BE ENCLOSED AND, IF SO, TO WHAT EXTENT?
See Hamilton v. State, 645 So.2d 555, 561 (Fla. 2d DCA 1994). We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const. We answer the certified question in the affirmative and approve the definition of curtilage contained in the instructions prepared by the Committee on Standard Jury Instructions in Criminal Cases.
Shane Hamilton was charged in one count of an information with burglarizing the dwelling of Stephen Jenks. He was charged in a separate count with the second-degree felony murder of Brian Thomas. The State's theory of prosecution as to the burglary was that Hamilton and Thomas entered the yard of Jenks' home with the intent to steal motors attached to a boat located in the yard next to the home. As to the second-degree murder charge, the State's theory was that during the perpetration of this burglary, Jenks, the innocent homeowner, shot and killed Thomas, and, hence, Hamilton, as a principal to the burglary, was guilty of felony murder.
At trial the State presented evidence that Hamilton and Thomas entered Jenks' backyard and proceeded to remove outboard motors from a boat parked on a trailer in the yard. The backyard was not enclosed by fencing or shrubs or in any other manner. 2 When Jenks saw them, he attempted to call the police but his phone did not work. 3 He then secured a shotgun and confronted Hamilton and Thomas in the backyard. Jenks shot and killed Thomas and fired at a truck in which Hamilton was fleeing.
Hamilton requested that the trial court instruct the jury on the definition of "structure" contained in the Florida Standard Jury Instructions in Criminal Cases. That definition provides that " '[s]tructure' means any building of any kind, either temporary or permanent, that has a roof over it, and the enclosed space of ground and outbuildings immediately surrounding the structure." Fla.Std.Jury Instr. (Crim.) 136 (emphasis added). However, the trial court opted, without explanation, to give a modified instruction requested by the State that contained no requirement that the yard be "enclosed" and defined "curtilage" as "the ground and buildings immediately surrounding a structure and dwelling and customarily used in connection with it." 4
Under these instructions, the jury found Hamilton guilty of grand theft in the second degree, burglary of a dwelling, and second-degree felony murder. On appeal, the district court, in a thorough and well-reasoned opinion, held that the trial court committed reversible error in deviating from the standard jury instruction on the definition of "structure," and in failing to include in its instructions a requirement that the curtilage be enclosed. The district court reversed the burglary and murder convictions and remanded for a new trial; however, the court rejected Hamilton's claims that the trial
court erred in denying his motion for judgment of acquittal and in failing to give a theory of defense instruction based on justifiable and excusable homicide. See Parker v. State, 570 So.2d 1048 (Fla. 1st DCA 1990).
Currently, section 810.02(1), Florida Statutes (1991), 5 defines burglary as "entering or remaining in a structure or conveyance with the intent to commit an offense therein." (Emphasis added). Section 810.02(3) enhances the penalty for burglary if the structure entered is a dwelling or there is a human being in the structure or conveyance at the time the crime is committed. At first blush, "structure or conveyance" seems to be an easily understandable and straightforward expression that is synonymous with "building" or "vehicle." But that is not the case. Section 810.011(1) defines a "structure" to mean "a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof." Id. Sec. 810.011(1) (emphasis added). Further, "dwelling" as used in section 810.011(2) is defined 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." Id. Sec. 810.011(2) (emphasis added). By the use of the phrase "together with the curtilage thereof," it is apparent that the legislature intended that the terms "structure" and "dwelling" also encompass the "curtilage," a description not limited to buildings or conveyances. However, section 810.011 does not define "curtilage," even though a definition is crucial to comprehending the full scope of the crime of burglary. The legislature apparently intended that the definition of curtilage already in use in the courts be applied. The district court concluded that the Florida Standard Jury Instructions in Criminal Cases "correctly states the relevant law that defines the curtilage as the 'enclosed space of ground and outbuildings immediately surrounding [the] structure.' " Hamilton, 645 So.2d at 562.
At common law, burglary was defined as the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony. 4 William Blackstone, Commentaries on the Laws of England 223-228 (1769). At the turn of the twentieth century, Florida enacted a burglary statute very similar to the common law version of burglary. Chapter 4405, Laws of Florida (1895) (), provided that:
Whoever breaks and enters a dwelling house, or any building or structure within the curtilage of a dwelling house though not forming a part thereof, with intent to commit a felony, or after having entered with such intent breaks such dwelling house or other building or structure aforesaid, if he be armed with a dangerous weapon, or have with him any nitro-glycerine, dynamite, gunpowder or other high explosive at the time of breaking and entering, or if he arm himself with a dangerous weapon, or take into his possession any such high explosive within such building, or if he make an assault upon any person lawfully therein, shall be punished by imprisonment in the state prison for life, or for such term of years as may be determined by the court.
If the offender be not armed, nor arm himself with a dangerous weapon as aforesaid, nor have with him nor take into his possession any high explosive as aforesaid, nor make an assault upon any person lawfully in said building, he shall be punished by imprisonment in the state prison not exceeding twenty years.
examination of foreign case law reveals that no state has gone as far in expanding the coverage of burglary as Florida. Where other states have sought to expand burglary to non-dwelling structures and their appendages, this intent has been effectuated through specific language clearly defining the applicable coverage, without resort to self-defining common law terminology. No other state has applied curtilage in the manner Florida seeks to treat it.
DeGeorge v. State, 358 So.2d 217, 220 (Fla. 4th DCA 1978). The question remains as to whether Florida's burglary statute requires an element of enclosure for an area to be considered curtilage. In order to answer the question, we must examine the historical and common law origins of the term "curtilage."
The cluster of buildings which were in reasonably close proximity to a dwelling house in England, and which were used by the dweller, together with the dwelling house, would usually be encircled by a fence or other enclosure. The common ground within the enclosure was designated as the curtilage, and all the buildings within the curtilage were considered part of the mansion-house or dwelling. 1 Emlin McClain, McClain on Criminal Law Sec. 497 (1897). The term curtilage was used in the crime of burglary as a way to identify and protect not only the main building and its occupants but also those buildings closely associated with it.
The word curtilage is derived from the Latin cohors (a place enclosed around a yard) and the old French cortilliage or courtillage which today has been corrupted into courtyard. United States v. Romano, 388 F.Supp. 101, 104 n. 4 (E.D.Pa.1975). In fact, one dictionary attributes the origin of the word courtyard to the "land with the...
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