Most people associate burglary with stealing, right? That’s what most of my clients tell me anyway. In the State of Florida, a burglary of a dwelling is defined as (1) entering a structure owned by or in the possession of another and (2) doing so with the intent to commit any criminal offense therein. So by this definition, you can be charged with a burglary if you go to your ex-boyfriend or ex-girlfriend’s house or apartment and hit them, for example. Burglary is not synonymous with stealing. All that a person has to do is enter a dwelling with the intent to commit a crime. That crime can be theft, battery, assault, a number of things…

To make the crime even more difficult to understand, a person can be convicted of this statute even if he or she never enters the home itself. This is because the definition of a “dwelling” includes porches and carports in SOME cases.

In order for a case to be considered a burglary of a dwelling, the defendant must have taken something from a victim’s “dwelling,” which is defined as “a building or structure of any kind, including any attached porch, whether such building or conveyance is temporary or permanent.”

In Small v. State, 710 So. 2d 591, the Fourth District held that a carport with no walls enclosing it except for a single wall shared with the house DID qualify was an “attached porch” and thus stealing anything in that carport would qualify as a burglary of a dwelling. In Blanchard v. State, 767 So. 2d 573, the Fifth District held that a glass-enclosed front porch of a duplex where the victim kept personal items WAS also part of the dwelling rather than a common area to the public.

In a very recent case (Harley Lloyd Colbert v. State of Florida), Mr. Colbert appealed his trial court conviction of burglary of a dwelling. Colbert’s attorney argued that taking of a bicycle from outside the victim’s front door was not in fact an “attached porch” of the dwelling. The case was brought to the appellate court where the court agreed with Colbert’s attorney and reversed the trial court’s conviction. They stated that the area was physically and visually open to the general public and, thus, not part of the structure as intended by the legislature.

In this case the bicycle was located in the front of the townhouse where there were no posts or sufficient enclosures to visually indicate it was an extension of, rather than just near, the townhouse. There was also no personal property within the area to suggest it was an extension of the property. Therefore, the state’s argument was rejected and the appellate court sided in favor of Mr. Colbert. His conviction was reversed.

If you are charged with a burglary of any kind, little nuances in the case law (like the above examples) can make all the difference in whether or not you are convicted of burglary. If you (or anyone you know) have been charged with Burglary, feel free to call me to discuss your defenses at 407-574-7576.


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