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Burglary of a Dwelling

Burglary of a Dwelling is serious charge. How serious? Technically, it's a second degree felony, so it carries a maximum prison sentence of 15 years. But the real problem isn't the maximum prison, but rather the level of the offense as computed on a scoresheet. Burglary of a dwelling is a level 7 offense, and it scores 56 points as a primary offense.

So, assuming this burglary of a dwelling is a first offense, we've got "total sentence points of" 56 (all level 7 offenses score 56 points, for those at home keeping track of such things). Any second degree felony scoring over 44 points will score mandatory prison, so we take the total sentence points of 56 and subtract 28 to get 28, multiply this by .75 to obtain the "lowest permissible prison sentence in months. For burglary of a dwelling this number comes to 21 months. There you have it, the first problem with this charge is that it scores a minimum of 21 months Department of Corrections. Assuming the Accused has a few prior crimes or other aggravating circumstances, that 21 months can increase substantially.

First of all, for those charged with Burglary of a Dwelling, what is a "dwelling"? Yes, of course it's a house, but technically it's defined as "a building or conveyance of any kind, including any attached porch...which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof." Section 810.011(2), Florida Statutes. But problems arise when a house or hotel is in the process of being built or renovated. Florida courts have held that structures "designed for lodging by people"--but currently unsuitable for lodging--may not qualify as a dwelling. See the Florida Supreme Court case of Perkins v. State, 682 So.2d 1083 (Fla. 1996). The issue of whether or not a dwelling is "suitable for lodging" gets even more complicated during state emergencies. Florida law provides a natural disaster exception that allows the damaged remaining portions of a house to still qualify as a dwelling despite the fact that the house is "unsuitable for lodging", where the unsuitability arises out of an emergency (a hurricane, for example).

The definition of dwelling can be expansive, as it is a building or conveyance which has a roof over it, and is designed to be occupied by people lodging therein at night, together with the curtilage thereof. (Florida Statute 810.011(2) (2009). Curtilage can simply mean the 'yard' of a home, either front yard, back yard, whatever. But curtilage is an important term because often times, citizens do not realize that the entry of someone's yard/curtilage can constitute a burglary of a dwelling, even though the defendant never makes it close to the dwelling itself. But, curtilage must be established via "some sort of an enclosure", and almost any sort of fencing will establish this. (See State v. Hamilton, 660 So. 2d 1038, at 1044, Florida Supreme Court 1995). This fencing can define a home's 'curtilage' even though the fence has openings for a driveway, sidewalk, etc.

What about garages, is theft from a garage a burglary of a dwelling or burglary of a structure? Well, that depends. First, is the garage sufficiently attached to the home? If so, it's part of the dwelling so it's a burglary of a dwelling. But, if the garage is both detached from the home and not enclosed together with the home by a fence, it's not a burglary to a dwelling, it's a simple burglary to a structure.

Burglary of a Dwelling charges can get messy in situations involving domestic disputes. In one recent case, a Florida resident was found guilty of burglary to a dwelling after breaking up with his girlfriend and leaving--though he had not quite moved out. When she changed the locks and he came in anyway, a burglary conviction resulted. So, when looking at a case with domestic overtones, the state may have a difficult time proving their case. For a more in depth look at this issue, see my article entitled "Can You Burglarize Your Own Apartment?"

Basically, there are so many variables in a burglary of a dwelling case, that there isn't enough space on this website. But, you don't have to worry. Simply give me a call, and we'll discuss your options. Thanks.

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