Tukes v. State, CC-155
| Decision Date | 07 June 1977 |
| Docket Number | No. CC-155,CC-155 |
| Citation | 346 So.2d 1056 |
| Parties | Joseph TUKES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Peter Keating, Daytona Beach, for appellant.
Robert L. Shevin, Atty. Gen., Donald K. Rudser, Raymond L. Marky, Asst. Attys. Gen., for appellee.
Tukes appeals his fifteen year sentence for breaking and entering a dwelling house with intent to commit a felony. The information incorrectly charged Tukes with violating Section 810.01, Florida Statutes (1973). The statute covering such an offense was repealed by Chapter 74-383, section 66, Laws of Florida and was replaced by Section 810.02, Florida Statutes (Supp.1974). The failure to cite the proper statute in support of the charge, however, was not assigned as error, and even if it had been so assigned would not be a cause for setting aside the judgment in the absence of a showing of prejudice. Fla.R.Crim.P. 3.140(o ).
On September 12, 1975, Tukes was apprehended in the stairway of a vacant house in a drunken condition. Officers found two electric fans, a pressure cooker, linens, blankets and other clothing piled upon an upstairs bed. A vacuum cleaner was found in the back bedroom where a window had been broken. Tukes raises several points on appeal, only one of which we find to be of merit: The trial court erred in failing to grant his motion for directed verdict since the evidence presented did not show the structure broken into was a dwelling. At the time of the offense the house was unoccupied and up for sale although the owner had been in residence the preceding month. We are of the opinion for the reasons stated infra that the structure was not a dwelling and that the sentence imposed must be reduced.
In Smith v. State, 80 Fla. 315, 85 So. 911 (1920), the house which defendant was charged with breaking and entering had been unoccupied for nine months, and although some of the household effects of the owner and his family were left inside it, there is no evidence that the owner intended to return and again occupy it. The court held in the absence of any proof that the occupant intended to return and reestablish his residence there that there was a failure in the evidence to prove the essential allegation that the structure was a dwelling house. The court approved the following common law definition of a dwelling as cited in 6 Cyc. 185:
" ...
To continue reading
Request your trial
-
Jordan v. State
...Sanders v. State, 386 So.2d 256, 257 (Fla. 5th DCA 1980); Wood v. State, 354 So.2d 134, 135 (Fla. 1st DCA 1978); Tukes v. State, 346 So.2d 1056, 1056 (Fla. 1st DCA 1977); King v. State, 336 So.2d 1200, 1202 (Fla. 2d DCA 1976).4 The fact that there was a nonprejudicial error in the statutory......
-
Boone v. Sec'y, Case No. 3:14-cv-1099-J-39JRK
... ... See Second Amended Petition Under 28 U.S.C. 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 10). Petitioner raises six grounds of ineffective assistance of counsel ... See Tukes , 346 So.2d at 1056; Wood , 354 So.2d at 135. Ex. P at 160. Finally, with regard to count five, ... ...
-
State v. Scarberry
...rule is set forth by the Florida court, quoting 6 Cyc. 185, and referring to several earlier cases, in Tukes v. State, 346 So.2d 1056, 1057 (Fla.Dist.Ct.App.1977), as follows: If it [a structure which has been established as a dwelling house] is so occupied the temporary absence of the occu......
-
State v. Bennett
...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 ......