![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]>
Thank You For Submiting Feedback!
It is the character and purpose of the house that determines its status as a dwelling for purposes of § 810.011(2), Fla. Stat. (2009). Section 810.011(2) must be given its plain and obvious meaning unless a literal interpretation would produce an unreasonable or ridiculous result. It appears that the plain and obvious meaning of § 810.011(2) can be ascertained, without producing an unreasonable conclusion. The plain meaning of the statute indicates an intent for the state of emergency exception to apply to the portion of the statute requiring a roof, not the portion requiring a certain "design." § 810.011(2), Fla. Stat. (2009) provides that during the time of a state of emergency, the term includes such portions or remnants thereof as exist at the original site, regardless of absence of a wall or roof. The plain language of the statute indicates a legislative intent to protect the "dwelling" status of a house that is destroyed during a state of emergency, despite the fact that the roof no longer exists. This reading of the statute does not remove the requirement that the intended purpose or character of the building be that "designed to be occupied by people lodging therein at night." This reading of the statute also effectuates the legislative intent without the need of adding an additional element not explicitly stated in the statute.
On September 6, 2009, Young entered a dwelling where the victim was located with the intent to commit an offense therein and that in the course of committing said offense, did make an assault or battery upon the victim, actually possessed a firearm or destructive device, and did carry, display, use, threaten to use or attempted to use a firearm. The information further alleged that Young took certain property from the victim; that he took the victim's motor vehicle by force, violence, assault or putting in fear; and that he did have in his care, custody, control or possession a firearm, after previously being convicted of a felony. The victim testified at trial that he owns his own drywall texture business. At approximately 8:00 p.m. on the night of September 6, 2009, he was cutting drywall "in the kitchen/dining room/living room area" of a house that he had been hired to renovate. He stated that he had been working on the house for approximately a week and a half and that once he finished cutting the drywall that night, his task would be complete. No other workers were present in the house that night. While on the floor cutting drywall, the victim heard a voice and looked up to see a man walking toward him with a gun, saying "Don't look at me." Young then said "Where's it at? Give it to me. You know where it's at." Young proceeded to reach into the victim's pockets and removed the victim's cell phone, keys and wallet. The victim stated that there was an accomplice outside with his shirt pulled over his head who quickly walked in, looked around and walked out. The victim watched the perpetrators leave in the victim's truck and immediately ran to a neighboring house to call 911. A patrol officer testified that he attempted to pull over Young, who was driving the victim's white Ford truck, after he failed to stop at two stop signs. Young immediately accelerated to a high rate of speed but was eventually apprehended. Thereafter, the officer ran the license tag number of the truck and learned that the truck was reported stolen. Young was taken to jail. Approximately four days after the robbery, the victim identified Young as the perpetrator in a photo lineup. That same day, the victim was able to retrieve his truck from the impound. The victim stated that when his truck was returned to him, it was in the same condition as the last time he saw it before the robbery, except that the truck previously had a quarter of a tank of gas and upon return, the gas tank was nearly empty. He also stated that all of his tools were accounted for and his wallet was also in the back seat of the car with all of the checks and credit cards still present. There were no unauthorized charges to the victim's credit cards and no money was missing from his bank account. The victim's cell phone was never recovered. On October 1, 2009, Petitioner Eric M. Young was charged by information with four offenses: (1) burglary of a dwelling; (2) robbery with a firearm; (3) carjacking with a firearm; and (4) possession of a firearm by a convicted felon.
Did the trial court err in finding Young guilty of burglary of a dwelling where the building in question was undergoing renovations and thus not suitable for lodging.
The evidence presented in the case under review demonstrated that the burglarized home was located in a residential neighborhood, was substantially completed, and had a roof, drywall, and a door secured with a lock. The Fifth District determined that the house in this case is in fact a dwelling. The Fifth District did not provide its reasoning for this determination; however, it seemed reasonable to assume that the Fifth District found the house to be a dwelling based on its purpose of "eventual human habitation," and not the appearance of the home at the time of the burglary, as is consistent with its previous decision in Michael v. State, 51 So. 3d 574 (Fla. 5th DCA 2010). If the character of a house and its suitability for lodging in fact refer to the appearance of the house and its suitability for immediate habitability, anyone who fails to regularly maintain the appearance of his or her home or decides to renovate his or her home, except during a state of emergency, risks losing the protections of increased penalties for burglary of a dwelling. This seems to be an unreasonable conclusion. It is evident from the language of the statute and is more reasonable that the Legislature intended for character and suitability for lodging to refer to the purpose of the structure. The purpose of a house does not change due to the owner's choice to update or remodel the structure. However, if a homeowner "substantially chang[es]" his or her home to create an office building, it is reasonable for this home to lose the status of "dwelling" as the purpose of the building has changed, along with the appearance. The fact that a house is undergoing renovations did not change its status as a dwelling, so long as its purpose is a house for lodging by people at night.