State v. Bennett

State v. Bennett

Opinion

 [*804]  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  [**2]  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) (cabin constructed on auto chassis); 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 (Va. 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  [**3]  structure," which is defined as any structure "customarily" used for the accommodation of persons. Ark. Stat. Ann. §§ 5-39-101(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, 136 Ill. Dec. 600, 545 N.E.2d 124 (1989) (vacant residential property  [*805]  into which new tenant planned to move in near future).

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