Burglary of a Dwelling Conviction

MEMORANDUM

TO:Senior Partner

FROM:Associate

RE:George Bailey – Burglary of a dwelling conviction

ISSUES PRESENTED

1. Under Florida case law, entering is an element of burglary.  Entering qualifies as any body part and is not secluded to the whole body.  Defendant put his arm through an open garage window to commit a burglary.  Did Defendant meet the element of entering as it pertains to the burglary statute?

2. 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.  Curtilage is some form of enclosure surrounding a property.  While standing on the neighbor’s property, Defendant burglarized 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?

BRIEF ANSWERS

1. 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.

2. No.  Florida law states that a property in which a dwelling resides must have curtilage, and curtilage was 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.

STATEMENT OF FACTS

Mr. George Bailey has been convicted 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. 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, 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 neighbor’s 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. Bishop’s propertywhere the garage is located, is lined with a short hedged wall, which he thought would conceal him from being seen when taking the sander.  Still standing on the property of the neighbor’s 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, 2016at 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.

DISCUSSION

Mr. George Bailey will unlikely to be convicted of burglary of a dwelling, becausealthough he meets the entry and intent elements, he does not meet the element of dwelling because Mr. Ernie Bishop’s property does not have curtilage.

In Florida, burglary is “entering 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. § 810.02(1)(b)(1) (LexisNexis Effective July 1, 2016).  To be convicted of burglary of a dwellingthe prosecution would have to 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.

These exceptions were not factors in Mr. Bailey’s case.  At the time of the burglary, Mr. Bishop’s 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 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. § 810.07(1) (LexisNexis 2016).  In the Baker case, the Court used defendant’s stealthy entry 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.

1. Mr. Bailey meets the element of entering within the meaning of the burglary 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, “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).; see also Spearman v. State, 366 So. 2d 775(Fla. Dist. Ct. App. 1978).  Therefore, the issue at hand is whether Mr. Bailey’s arm provides sufficient evidence to establish the element of entering.

Therefore, the entering element is satisfied when any body part enters a dwelling.  Polk, 825 So. 2d 478, 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 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 thatalthough 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. 

In this case, and similar to Polk and Spearman, where a part of the accused’s 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 becauseas he stood in the neighbor’s property he entered Mr. Bishop’s property when he put his arm through Mr. Bishop’s 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. Bailey’s arm to reach into Mr. Bishop’s open garage window while standing on the neighbor’s property, he satisfied the entering element because a part of his body entered Mr. Bishop’s property. 

2. Mr. Bailey does not meet the dwelling element within the meaning of the burglary statute because he burglarized a detached garage on a property that does not have curtilage.

Florida law defines a dwelling 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. § 810.011(2) (LexisNexis 2016).

The issue in Mr. Bailey’s case is whether the detached garage is considered a dwelling.  A dwelling is established, when the property in which the dwelling resides has curtilage.  Curtilage is a dwelling element that must be met.  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, 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 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.  Id. at 143.  The detached garage was located between the main house and the neighbor’s house.  Id.  Additionally, there was a fence bordering only two sides of the property.  Id.  The Court held that 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 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.  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 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.  Id.

Now, in the instant case, a property does not have curtilage when there is no form of an enclosure surrounding the property.  Mr. Bishop’s 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.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. Bishop’s property lacks an enclosure on one side of the property, which lacks curtilage.  Therefore, like in Hamilton, a court would find Mr. Bishop’s partly open property to lack curtilage.

Analogously, a property lacks curtilage when it is not enclosed on all sides.  Mr. Bishop’s 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. Bishop’s property, that side is completely open.  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 Martinez, where the property was enclosed on only two sides, here, Mr. Bishop’s property was enclosed on only three sides.  Consequently, the lack of a boarder surrounding that fourth side of Mr. Bishop’s property, would deem the entire property, including the detached garage, as not having curtilage.  Therefore, in the 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. Bishop’s 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. Bishop’s properties are similar in that both have a low-walled stoop 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. Bishop’s property lacks some form of enclosure.  Therefore, the unenclosed side of Mr. Bishop’s 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 instant case, Mr. Bishop’s 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, 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. Bishop’s property had enclosures on only two of the three remaining sides.  Therefore, although Mr. Bishop’s 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 curtilage.  As such, Mr. Bishop’s property does not have curtilage.

Since, Mr. Bailey burglarized 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 neighbor’s property, his arm went into Mr. Bishop’s property through the open garage window. 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 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	Don’t 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 bishop’s property)
Example Cases/Rule Proof	4	4
Application/Analysis	6	3.5	Missing topic sentence that restates conclusion.  Failed to compare the E cases.
B. Dwelling Total	38	29.5
Organization/CREAC Structure	2	1	See notes on your Conclusions
Rule	6	5
Example Cases/Rule Proof	12	10	Don’t capitalize defendant.  See notes on Martinez.
Application/Analysis	18	13.5	See notes on organization, missing application and redundancy.  Didn’t start with strong conclusion:  No curtilage so garage not part of dwelling.
DISCUSSION SECTION TOTAL	60	47
CONCLUSION	2	2	See notes on how to shorten
Total Points (- late points)	100	72	During the fall, review comma rules and short citation form.  Another area is precision

1Your heading contains all the required components: Memorandum, To, From, Date, Re.

Incorrect.  This is statutory law.

Awkward:  occurs when

Include when not on victim’s property.

Not always the case if the building is the dwelling itself.

Burglary is the ultimate issue so can’t draw that conclusion here.  Each of these issues must be answered before you can do that.

Unclear:  Did the unattached garage fall within the curtilage to be considered part of the dwelling.

Incorrect.  Property doesn’t need curtilage.

Don’t shift tenses.

Failed to show how this property doesn’t have curtilage.

Need to know the difference between charged and convicted.  Didn’t read memo carefully.

Probably not relevant and redundant.  Failed to set context and purpose of memo:  to determine if he entered the unattached garage and if the garage qualifies as part of the dwelling.

Improper comma as not full sentence behind it (no subject).

Comma.  Already can see that you need to review comma rules. That is something for you to do this fall.

Unclear.

Comma after full date.

Booking and bonding irrelevant.  He has not had a trial so no conviction.  Need to carefully read your assignment memo.

Never end page with header.

This is correct, but see how it is inconsistent with your stmt of facts where say he’s been convicted?

Comma here

Awkward:  He entered the garage with intent to commit a crime

Not that he doesn’t meet it but the garage doesn’t qualify as part of dwelling

Bracket around E because Capital E in statute.

1You need a comma after an opening prepositional phrase.

• Example: ‘To play at an elite level, athletes must dedicate their lives to their sport.’
• For more help click here:

Wordy: must

Awkward and no paragraph break.

No testimony, just office interview.

Need short cite.  See Mastering the Bluebook, p. 76

But need facts of case to show what stealth means.

Wordy:  entered the garage when he inserted his hand in the window b/c …

as

only semi colon for string cite.

Can’t omit pincite.

When never on Bishop’s property.

Careful because the garage is not a dwelling.

Improper short cite.

Pronoun doesn’t match noun.  Improper short cite. See Mastering the Bluebook.

comma

Start with just conclusion:  Bailey entered the garage.

comma

C is clear and concise. Probably best sentence you’ve written.

If he burglarized, then all elements met so chose words carefully.  Further, issue is not Bailey but whether unattached garage is part of the dwelling.

Good start.

Short cite.

No paragraph break.

Awkward and unclear.  Dwelling is given in the statute itself.  Now the question is what is curtilage.

Not helpful.  Rather, told reader issue is whether detached garage is part of dwelling and that is based on whether it falls within the curtilage.

Good topic sentence. Improper short cite.  You need to review that this fall.

E is clear and focused.

Irrelevant.

Be clear that no fence where garage was.

Reader needs to know what sides.

Holding is unattached garage not a dwelling.   Reasoning:  must explain the difference between marking boundary and creating a barrier to entry.

Good topic sentences.

Good job: clear and concise

Took or stole

Opening for ingress and egress is permissible.

Awkward.

Start with conclusion.  Is this curtilage or not?

Organization:  These facts should be in prior paragraph.

Does it matter that open side was not near the garage?  In Martinez, the open side was where garage was located?  Must address that issue.  Further, must address issue in Martinez about marking boundary vs creating barriers.

Actually it is Jacobs with the stoop

Good.

See how this is redundant of last paragraph?

Cite goes here. Not at end of sentence.

If no curtilage then no burglary.  Be careful and precise with words.  Only conclusion here should be that property has no curtilage so garage not part of dwelling.

However, the dwelling element is not satisfied because

Simplify:  Because the dwelling element is not met, Mr. Bailey would not be convicted …