Burglary of a Dwelling Conviction

Burglary of a Dwelling Conviction MEMORANDUM TO: Senior Partner FROM: Associate RE: George Bailey Burglary of a dwelling conviction DATE: July 11, 2016[FEC1] ISSUES PRESENTED Under Florida case law[FEC2], entering is an element of burglary. Entering qualifies as any [FEC3]body part and is not secluded to the whole body. Defendant put his arm through an open garage window to commit a burglary[FEC4]. Did Defendant meet the element of entering as it pertains to the burglary statute? Under Florida statute, dwelling is an element of burglary. For any building to be considered a dwelling, the property in which it resides must have curtilage[FEC5]. Curtilage is some form of enclosure surrounding a property. While standing on the neighbors property, Defendant burglarized[FEC6] a detached garage on a property that was enclosed on three sides, with the fourth side open. Did Defendant meet the element of dwelling as it pertains to the burglary statute?[FEC7] BRIEF ANSWERS Yes. Florida law defines entering as intrusion of any body part to commit the crime. An arm fits the definition of any body part because it is part of the body and can be used to commit the crime. Therefore, an arm qualifies as an entering body part under Florida law. No. Florida law states that a property in which a dwelling resides must [FEC8]have curtilage, and curtilage was [FEC9]defined as any form of enclosure surrounding a property. A detached garage would not be a dwelling, if its property is not surrounded by some form of an enclosure. Therefore, a detached garage on a property without curtilage would not qualify as a dwelling under Florida law[FEC10]. STATEMENT OF FACTS Mr. George Bailey has been convicted [FEC11]of burglary of a dwelling and is seeking help with his conviction. Mr. Bailey is an unemployed thirty-four year old male, who has resided at 320 Sycamore Street, Bailey Park Florida 33430 for nine years with his wife and four young children. He has been unemployed for approximately two years[FEC12]. Mr. Bailey seeks the help of counsel with his conviction of burglary of a dwelling. Specifically, the conviction of burglary as it pertains to Florida law. On May 27, 2016, Mr. Bailey was driving in the residential area of Pottersville looking for thrown out furniture to refurbish and resell. He came across a home with patio furniture sitting out on the curb for trash pickup,[FEC13] and decided to load it onto his truck. Before getting back into his truck, he glanced around for anything else to pick up. He then saw an electric sander sitting on a workbench inside an open garage window of the neighbors house, Mr. Ernie Bishop. Mr. Bailey advised, that he wanted the sander because most of his tools needed to be replaced and the small sander would allow for more refinishing of furniture than sanding by hand. The side of Mr. Bishops property[FEC14]where the garage is located, is lined with a short hedged wall[FEC15], which he thought would conceal him from being seen when taking the sander. Still standing on the property of the neighbors home, he reached over the hedge wall and into the partly open window with his arm, took the sander, and went back to his truck. Minutes later, he was stopped by police and arrested for burglary of a dwelling. Mr. Bailey was arrested on May 27, 2016[FEC16]at approximately 8:35 p.m. He was booked at approximately 9:00 p.m. on the same day, and was convicted of burglary of a dwelling with a $2,000.00 bond. He conviction is to be heard in front of a judge.[FEC17] DISCUSSIONN[FEC18] Mr. George Bailey will unlikely to be convicted [FEC19]of burglary of a dwelling, because[FEC20]although he meets the entry and intent elements[FEC21], he doe[FEC22]s not meet the element of dwelling because Mr. Ernie Bishops property does not have curtilage. In Florida, burglary is e[FEC23]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter . . . . Fla. Stat. Ann. ÂÂ § 810.02(1)(b)(1) (LexisNexis Effective July 1, 2016). To be convicted of burglary of a dwelling[FEC24]the prosecution would have to [FEC25]prove that Mr. Bailey meets the elements of entering, dwelling, and intent. The exceptions to the rule, are if the property was open to the public, if Mr. Bailey was a licensed professional performing work on the property, or if Mr. Bailey was a social guest invited onto the property.[FEC26] These exceptions were not factors in Mr. Baileys case. At the time of the burglary, Mr. Bishops property was not open to the public. It is a privately owned home located in a residential area of Pottersville. Additionally, Mr. Bailey did not personally know Mr. Bishop, nor was he hired by Mr. Bishop to perform any type of professional services. Mr. Bailey meets the intent element because he testified [FEC27]that his intention was to take the sander without being seen. Florida law states that proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof is prima facie evidence of entering with intent to commit an offense. Fla. Stat. Ann. ÂÂ § 810[FEC28].07(1) (LexisNexis 2016). In the Baker case, the Court used defendants stealthy entry [FEC29]as an evidentiary tool to establish the proof of intent to commit burglary. Baker v. State, 636 So. 2d 1342, 1344 (Fla. 1994). Therefore, by intending to steal the sander without anyone seeing him, Mr. Bailey used the coverage from the hedges to sneak his arm into the garage, which provides sufficient evidence to meet the intent element. Thus, the elements at issue here are entering and dwelling. Mr. Bailey meets the element of entering within the meaning of the burglary [FEC30]statute because he used his arm to take the sander from the window, and using any body part establishes entry. The entering element, is defined through case law. The Court states, [FEC31]the unqualified use of the word enter in a burglary statute does not confine its applicability to intrusion of the whole body but includes insertion of any part of the body or of an instrument designed to effect the contemplated crime. Polk v. State, 825 So. 2d 478, 479 (Fla. App. 2002).[FEC32]; see also Spearman v. State, 366 So. 2d 775[FEC33](Fla. Dist. Ct. App. 1978). Therefore, the issue at hand is whether Mr. Baileys arm provides sufficient evidence to establish the element of entering.[FEC34] Therefore, the entering element is satisfied when any body part enters a dwelling[FEC35]. Polk, 825 So. 2d 478[FEC36], 479. In the Polk case, the Defendant used his arm to unlatch a window in order to commit burglary. Id. The Court held that intrusion of any body part is sufficient enough to satisfy the entry of a dwelling within the meaning of the burglary statute. Id. at 480. Consequently, the element of entering is met when a person enters with any part of their [FEC37]body. Spearman, 366 So. 2d 775. In Spearman, the Defendant went to the front door and upon the door opening, struck the resident in the face. Id. The Defendant was ultimately charged with burglary and assault. Id. With respect to the burglary charge, the Court held that[FEC38]although his whole body did not enter the home, he entered when his arm and hand reached into the doorway and struck the resident. Id. at 776. The entry of any body part provided sufficient evidence for a conviction of burglary. Id. [FEC39] In this [FEC40]case, and similar to Polk and Spearman, where a part of the accuseds body entered a garage or a home, here, Mr. Bailey used a part of his body, his arm, to take the sander from an open window. As the Court held that intrusion of any body part is sufficient to establish an entry, Mr. Bailey meets the element of entering because[FEC41]as he stood in the neighbors property he entered Mr. Bishops property when he put his arm through Mr. Bishops garage window. Therefore, the entry of his arm would provide sufficient evidence to meet the entering element. Polk, 825 So. 2d 478; Spearman, 366 So. 2d 775. Thus, when Mr. Baileys arm to reach into Mr. Bishops open garage window while standing on the neighbors property, he satisfied the entering element because a part of his body entered Mr. Bishops property. [FEC42] Mr. Bailey does not meet the dwelling element within the meaning of the burglary statute because he burglarized [FEC43]a detached garage on a property that does not have curtilage. Florida law defines a dwelling [FEC44]as a building or conveyance of any kind, including any attached porch, whether such building or conveyance is 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. Fla. Stat. Ann. ÂÂ § 810.011(2) (LexisNexis 2016[FEC45]). The issue in Mr. Baileys case is whether[FEC46] the detached garage is considered a dwelling. A dwelling is established, when the property in which the dwelling resides has curtilage. [FEC47]Curtilage is a dwelling element that must be met. [FEC48]Florida law states that some form of an enclosure . . . must be present surrounding a residence to be considered part of the curtilage. . . . State v. Hamilton, 660 So. 2d 1038, 1045 (Fla. 1995). Additionally with regards to unattached structures, case law states that not having a form of barrier around extended residence of the curtilage, falls short of bringing unattached structures within the curtilage of the home. Martinez v. State, 700 So. 2d 142, 144 (Fla. Dist. Ct. App. 1997). Accordingly, when there is no form of enclosure[FEC49], a property does not have curtilage. Hamilton, 660 So. 2d 1038, 1045. In Hamilton, the Defendant attempted to burglarize outboard motors from a boat located on an unfenced backyard. Id. at 1039.The backyard was not enclosed by a fence, shrubs, or any form of a barrier. Id. Although there were a few spaced out trees around the property, the Court held that the property did not have curtilage and therefore[FEC50] the evidence did not support a conviction of burglary of a dwelling. Id. at 1046. Moreover, curtilage does not exist when the enclosure of a property does not surround all sides. Martinez, 700 So. 2d 142, 144. In Martinez, Defendant burglarized a sander from a detached garage, which had a driveway connecting the garage to the street. [FEC51]Id. at 143. The detached garage was located between the main house and the neighbors house. Id[FEC52]. Additionally, there was a fence bordering only two sides of the property[FEC53]. Id. The Court held that [FEC54]actual barriers are needed around the residence and unattached structures, to make it part of a curtilage of a home. Id. at 144. Therefore, the detached garage was not a dwelling because it was located on a property that did not have curtilage. Id. As such, the Defendant could not be convicted of burglary of a dwelling. Id. Specifically, a property has curtilage when an enclosure surrounds a property regardless [FEC55]of an opening for a driveway. Dubose v. State, 75 So. 3d 383, 385 (Fla. Dist. Ct. App. 2011). In Dubose, Defendants entered a property surround by a chain-linked fenced to commit burglary and fired bullets into the house. Id. at384, 385. The property was fenced in on all sides, with an opening for the driveway in the front. Id. at385. The Court held that an enclosure did not have to be completely closed to allow an opening for the driveway, and the open driveway did not prevent the property from having curtilage. Id. As such, the property satisfied the enclosure requirement for curtilage. [FEC56]Id. Furthermore, a property surrounded with enclosures has curtilage even with an opening at the driveway. Jacobs v. State, 41 So. 3d 1004, 1006 (Fla. App. 2010). Defendant burglarized [FEC57]aluminum siding from a vacant home surrounded by a fence. Id. at 1005. The property contained a fenced in yard on three sides, and a low-wall stoop at the front yard with an opening for the driveway. Id. at 1006. The Court held that the property had sufficient enclosure of some form to establish curtilage because all sides of the property were enclosed and an open driveway need not be part of the enclosure[FEC58]. Id. Now, [FEC59]in the instant case, a property does not have curtilage when there is no form of an enclosure surrounding the property. Mr. Bishops property has a chain-link fence in the backyard, a short hedge wall on one side, a short stone wall at the front of the property, and no barrier at all on the other side of the property.[FEC60]The Court in Hamilton, did not find the several unevenly spaced trees as sufficient enough evidence to support curtilage. Hamilton, 660 So. 2d 1038, 1047. Therefore, if having separated trees as an enclosure is not enough evidence for curtilage then, here, in the instant case not having a barrier at all is no evidence for curtilage. Similar to Hamilton, where the property lacked sufficient enclosure on part of the property, here, Mr. Bishops property lacks an enclosure on one side of the property, which lacks curtilage. Therefore, like in Hamilton, a court would find Mr. Bishops partly open property to lack curtilage. Analogously, a property lacks curtilage when it is not enclosed on all sides. Mr. Bishops property consists of a chain-link fence along the backyard, a line of three-foot hedges along the side of the property where the detached garage is located, and a short stone wall along the front yard with the driveway open. There is no boarder on the fourth side of Mr. Bishops property, that side is completely open. [FEC61]In Martinez, the Court held that not having a barrier surrounding the property, including the detached structures of a property, fall[s] short of bringing unattached structures within the curtilage of the home. Martinez, 700 So. 2d 142, 145. Almost similar to [FEC62]Martinez, where the property was enclosed on only two sides, here, Mr. Bishops property was enclosed on only three sides. Consequently, the lack of a boarder surrounding that fourth side of Mr. Bishops property, would deem the entire property, including the detached garage, as not having curtilage. Therefore, in t he instant case, the detached garage would not be considered a dwelling because its property is not enclosed on one side, which lacks curtilage. Nevertheless, a property has curtilage even when there is an opening for the driveway. In the instant case, among other types of enclosures around Mr. Bishops property, there is a short-stone wall at the front of the property with an opening for the driveway. In Dubose, the Court held that an enclosure need not be continuous . . . and that an unenclosed opening for ingress and egress does not preclude a determination that the yard is included in the curtilage of a house. Dubose, 75 So. 3d 385. Although, Dubose and Mr. Bishops properties are similar in that both have a low-walled stoop [FEC63]at the front of the property with an opening for the driveway, there is a difference as to the remaining sides of the properties to the cases respectively. In contrast to Dubose, where the remaining sides of the property were enclosed by a chain-link fence, here, in the instant case one of the remaining sides of Mr. Bishops property lacks some form of enclosure. [FEC64]Therefore, the unenclosed s ide of Mr. Bishops property, would lack evidence to satisfy curtilage to a dwelling. As such, the property where the detached garage is located would not have curtilage, and therefore the garage would not be considered a dwelling. Additionally, curtilage exist when an enclosed property has an open driveway. In the [FEC65]instant case, Mr. Bishops front yard has a short, stone wall with no gate in the driveway. In Jacobs, the Court held that the yard was delineated by some form of enclosure, and this enclosure included the opened driveway. Jacobs, 41 So 3d 1006. Although similar to Jacobs, where the property contained a low-walled stoop' with an open driveway, [FEC66]here, in the instant case Mr. Bishop also has a low stone wall with open driveway, however the main difference is the remaining sides of the properties. Id. In contrast, the property in Jacobs was fenced in on the remaining three sides, while in the instant case, Mr. Bishops property had enclosures on only two of the three remaining sides. Therefore, although Mr. Bishops front yard with the open driveway would still establish curtilage (on a fully enclosed property), having one side of the property without some form of enclosure does not provide cu rtilage. As such, Mr. Bishops property does not have curtilage. Since, Mr. Bailey burglarized [FEC67]a detached garage on a property that was not enclosed on all sides, it does not have curtilage, and therefore does not meet the dwelling element. CONCLUSION To be convicted of burglary of a dwelling, intent, entry, and dwelling are elements that must be met. Mr. Bailey satisfies the intent element because he had the intention of stealing the sander by hiding and reaching over the hedges. Mr. Bailey also satisfies the entry element because while standing at the neighbors property, his arm went into Mr. Bishops property through the open garage window. [FEC68]Mr. Bailey does not satisfy the dwelling element because the detached garage was located on a property that was not enclosed on all sides, which lacks curtilage. All elements of burglary of a dwelling must be met in order to be convicted. Although, Mr. Bailey meets the entry and intent elements, he does not meet the dwelling element [FEC69]due to the lack of curtilage on the property, and therefore would not be convicted of burglary of a dwelling. Grade grid below Section Possible Points Points Earned Comments Style/Format 4 3 Dont end page with headers Citations 5 2.5 Major problem with short cites. Also had improper jurisdictional references. Quotations 2 2 Writing 14 9 At times, writing clear and other times awkward and wordy. Be careful with word selection. Commas are a problem. ISSUES PRESENTED 4 2 Not precise enough as indicated. Rule is really rule of burglary: burglary occurs when a defendant enters a dwelling with intent to commit a crime. Then go to facts on entry. Same rule then goes in sub issue B. BRIEF ANSWERS 4 2 Incorrect legal standard and inadequate explanation of answer STATEMENT OF FACTS 5 2.5 In addition to comments, curtilage requires review of fencing or walls, so need those facts. Should also have fact that Bishop identified sander in truck. DISCUSSION SECTION Main C and Rule 7 5.5 See comments. A. Entry Total 15 12 Organization/CREAC Structure 2 2 Rule 3 2.5 Issue needs to be clearer (when his body not on bishops property) E