The 2023 Florida Statutes
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Adkins contends that his trial counsel was ineffective for failing to request a jury instruction on the lesser-included offense of “simple burglary.” (Doc. 10 at 5.) Adkins was charged with burglary of an occupied dwelling, a second-degree felony. (Doc. 132, Ex. 2, at 1; see also Fla. Stat. § 810.02( 1)(b)(3)(a).) The trial court instructed the jury on the elements of that offense. (Doc. 13-2, Ex. 3, at 200-02.) The court also informed the jury that, if it did not find the charge to be “proved beyond a reasonable doubt,” it must consider whether Adkins was guilty of the lesser-included offense of trespass. (Id. at 203.) The court did not, however, instruct the jury that it could find Adkins guilty of the lesser-included offense of simple burglary, a third-degree felony that occurs if the offender (1) enters an unoccupied “structure” or “conveyance” rather than a “dwelling,” and (2) intends “to commit an offense therein.” Fla. Stat. § 810.02( 1)(b)(4). Likewise, the verdict form required the jury to decide whether Adkins committed burglary of an occupied dwelling or trespass; it did not include an option for simple burglary. (Doc. 13-2, Ex. 5.) As noted above… The State gave notice of intent to classify Key as a Prison Releasee Reoffender, a Habitual Felony Offender, and a Violent Career Criminal ("VCC"). The offense in count 1 is a first-degree felony punishable by a sentence up to and including life imprisonment. § 810.02(2)(c)2., Fla. Stat. (2010). As such, when as in this case, the defendant qualifies as a VCC, the required sentence for count 1 is life imprisonment. § 775.084(4)(d)1., Fla. Stat.Affirmed. See Morris v. State, 727 So.2d 975, 977 (Fla. 5th DCA 1999) ("An acquittal in a criminal case does not preclude the judge from determining that a parole or probation violation has occurred based on the same conduct."); Eustache v. State, 248 So.3d 1097, 1100 (Fla. 2018) ("Florida courts have consistently treated conduct involving a new criminal offense, such as [appellant's] illegal drug possession, as a substantive violation."); Flagg v. State, 179 So.3d 394, 397 (Fla. 1st DCA 2015) ("Where there has been a substantive violation, such as a new law offense, a previously designated youthful offender may be sentenced above the six-year cap up to the statutory maximum for the underlying offenses."); see also § 810.02(2), Fla. Stat. (2010).a violation of subsection (a). ... [T]he judgment should not reflect a violation of section 810.02(2)(a), and this Court should remand for the trial court to correct the written judgment so it [indicates] a violation of ... section 810.02(2)(b) to reflect the language in the information and the jury's findings. [ See] Sweeney v. State, 138 So.3d 1095, 1095 (Fla. 4th DCA 2014) (remanding for trial court to correct statute number on appellant's written judgment and sentencing documents); [ cf.] Moseley v. State, 688 So.2d 999, 1000 (Fla. 2d DCA 1997) ("Because the information recited the appropriate factual description of a violation of section 810.02(2)(a), we treat the citation to the incorrect statute as a scrivener's error and remand this case for correction of the judgment to indicate a conviction under section 810.02(2)(a).").On August 13, 1999, at the conclusion of a trial in Leon County Circuit Court case 1998-CF-2824, the jury found Petitioner Dwayne Martin guilty of (1) burglary with assault, a first degree felony punishable by life in prison, in violation of section 810.02(2)(a), Florida Statutes; (2) trespass of an occupied structure, a first degree felony punishable by life in prison, in violation of section 810.02(2)(a), Florida Statutes; (3) armed burglary of a dwelling, a first degree felony punishable by life in prison, in violation of section 810.02(2)(b), Florida Statutes; and (4) resisting arrest without violence, a first degree misdemeanor, in violation of section 843.02, Florida Statutes. Ex. B (verdict).The offenses occurred July 12, 1998. Ex. A. On December 1, 1999, Judge George S. Reynolds sentenced Martin to life in prison as a Prison Releasee Reoffender (PRR) on Counts 1 and 3, and to 365 days' time served on Counts 2 and 4, with all sentences concurrent. See Exs. C at 28-29 (sentencing transcript); D (judgment and sentence).To prove the predicate crime of burglary, the State was required to prove that Appellant entered "a dwelling, a structure, or a conveyance with the intent to commit an offense therein." § 810.02(1)(b), Fla. Stat. From this evidence, a reasonable inference can be drawn that Appellant and two others, at the very least, set up the victim for a robbery. Again, the victim's house was ransacked. Appellant's JOA argument essentially asks this Court to reweigh the evidence in his favor, which is not appropriate. And so, we see no problem with the trial court's ruling on the JOA motion.premises are at the time open to the public or the defendant is licensed or invited to enter." Id. § 810.02(1)(b). As relevant here, Florida law defines the crime of threats, in relevant part, as "[w]hoever
On March 25, 2015, the State Attorney for the Tenth Judicial Circuit in and for Highlands County, Florida charged Petitioner with (1) burglary of a dwelling while armed with a firearm in violation of Fla. Stat. §§ 810.02 and 775.087, and (2) grand theft in violation of Fla. Stat. § 812.014 (DE 9-1 at 9-11, Ex. B). The case proceeded to trial on June 13, 2016 (DE 10-3, DE 10-4).To address Appellant's claim of truly inconsistent verdicts, I must consider the broader context of Florida's burglary statute set forth in section 810.02, Florida Statutes (2019). Generally, in Florida, burglary of an unoccupied structure is a third-degree felony, punishable by five years in prison. See § 810.02(4)(a), Fla. Stat. If the structure burglarized is a dwelling, that burglary is classified as a second-degree felony, punishable by fifteen years in prison. See § 810.02(3)(a)-(b), Fla. Stat. Further, under Florida law pertinent to this case, burglary is a first-degree felony punishable by life in prison if during the burglary of a dwelling, structure, or conveyance, one assaults or batters another person, is or becomes armed within the dwelling, structure or conveyance, or causes damage to the dwelling or structure in excess of $1,000. See § 810.02(2), Fla. Stat.Tobitt contends that trial counsel was ineffective for not objecting to a misleading and confusing jury instruction. As addressed, the State's theory of burglary was that Tobitt entered the property without permission and with the intent to commit an offense therein. But a burglary can also occur when a person, “[n]otwithstanding a licensed or invited entry, remains in a dwelling, structure, or conveyance” under certain circumstances. § 810.02(1)(b)2., Fla. Stat.. . . See § 810.02(4)(a), Fla. Stat. (2015). . . .
. . . The judgment and order of revocation cites to section 810.02(4), Florida Statutes (2018). . . . directions that this scrivener's error be corrected so that the judgment accurately reflects section 810.02 . . .
. . . Newby was charged in a one-count information with burglary with a battery under section 810.02(2)(a), . . .
. . . . § 810.02 (1985 & 1989). . . .
. . . ." § 810.02(2)(a), Fla. Stat. (2017). . . .
. . . Section 435.04(2)(z) lists burglary in section 810.02, Florida Statutes, as a qualifying offense. . . .
. . . of burglary of a conveyance with "an air pistol or BB gun, a dangerous weapon or explosive," see § 810.02 . . . Stat. (2015) ; and one count of attempted burglary of a conveyance "with a deadly weapon," see §§ 810.02 . . . See generally § 810.02. . . .
. . . . § 810.02(2)(b), Fla. Stat. He qualified for sentencing as a PRR and a habitual felony offender. . . . second-degree felony), which would carry a fifteen-year sentence as a PRR, in exchange for a guilty plea. §§ 810.02 . . .
. . . James was charged with burglary of a dwelling in violation of subsections 810.02(1) and (3), Florida . . .
. . . ." § 810.02(1)(b), Fla. Stat. (2016). . . .
. . . one charge of burglary because the two counts constituted the same statutory offense under section 810.02 . . .
. . . Torna , 742 So.2d at 367 (suggesting that "in future cases involving charges of a violation of section 810.02 . . . See § 810.02(2)(a), Fla. . . .
. . . Burglary of a dwelling 810.02(3) 13.1 Robbery 812.13(2)(c) 15.1 Burglary of a Structure 810.02 13.1 Petit . . .
. . . . §§ 810.011(2), 810.02 (1976) ; Ga. . . .
. . . 1981 and was amended in 1992 [603 So.2d 1175], and 2014 [146 So.3d 1110], and 2018. 13.1 BURGLARY § 810.02 . . . Burglary 810.02(4) 13.1 Aggravated battery 784.045 8.4 Persons Engaged in 790.07(2) 10.3 Criminal Offense . . . in 790.07(1) 10.3 Criminal Offense Having Weapon Assault 784.011 8.1 Attempt 777.04(1) 5.1 Burglary 810.02 . . . OF STRUCTURE OR CONVEYANCE WITH HUMAN BEING INSIDE; BURGLARY OF AN AUTHORIZED EMERGENCY VEHICLE* - 810.02 . . . BURGLARY - 810.02(4) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. . . .
. . . and the information alleged that the defendant's actions were "contrary to the provisions of section 810.02 . . .
. . . was changed to "ARMED BURGLARY OF DWELLING WITH PERSON ASSAULTED" and included a citation to section 810.02 . . . acknowledged receiving the amended information and its completed burglary charge, which referenced section 810.02 . . . In addition to citing the burglary statute, section 810.02(2), by alleging that Mr. . . .
. . . structure or conveyance, with explosives or a dangerous weapon.' " (alteration in original) (quoting § 810.02 . . .
. . . See § 810.02(2)(a)&(b), Fla. Stat. . . . See §§ 812.13(2)(a) & 810.02(2)(a)&(b), Fla. Stat. . . .
. . . . § 810.02(1)(b) & (3)(a) (West 2008). . . . Stat. § 810.02(1)(b)(1),] indisputably does not implicate the elements clause [of the 'crime of violence . . .
. . . ." § 810.02(1) - (2), Fla. Stat. . . . . § 810.02(2), Fla. . . . To commit or attempt to commit a forcible felony, as defined in s. 776.08. § 810.02(1)(b), Fla. . . . in the course of committing the offense, the offender makes an assault or battery upon any person. § 810.02 . . .
. . . corrected to reflect that appellant was charged with burglary of an unoccupied dwelling under section 810.02 . . .
. . . was required to "plead and prove not only the essential elements of burglary as defined in section 810.02 . . .
. . . See §§ 810.02(3), 812.019(1), Fla. Stat. (Supp. 1984). . . .
. . . As to the October burglary, the state alleged a violation of section 810.02(2)(c)2., Florida Statutes . . . residential burglary causing "damage to the dwelling or property within the dwelling in excess of $1,000." § 810.02 . . .
. . . . § 810.02(2)(b), Fla. Stat. (2012). . . .
. . . Pursuant to section 810.02(1)(b)1., Florida Statutes (2014), it is burglary to enter a dwelling without . . .
. . . Humphrey was charged with and convicted of burglary with a battery under section 810.02(2)(a), Florida . . .
. . . See §§ 777.011, 810.02(2)(a), Fla. Stat. (2015). . . . . § 810.02(4)(b), Fla. Stat. (2015). . . .
. . . Count One of the petition alleged that I.L. committed burglary of a structure in violation of section 810.02 . . . necessarily lesser-included offense of burglary of a structure as charged in the petition under section 810.02 . . .
. . . . § 810.02 (1983) ; Ga. Code Ann. § 16-7-1 (1984); Hawaii Rev. Stat. § 708-810 (1985); Ill. Rev. . . . Ann. § 810.02 ; Ga. Code Ann. § 16-7-1 ; Haw. Rev. Stat. Ann. § 708-810 ; 720 Ill. Comp. Stat. . . .
. . . a dwelling with an assault or battery and a firearm when the correct statutory citation is section 810.02 . . . (2)(a), Florida Statutes (2015), and erroneously cites to section 810.02(2)(a) for the crime of aggravated . . .
. . . convictions for violent felonies, with one being his conviction for Florida burglary under Florida Statute § 810.02 . . . Subsequently, this Court held that a Florida burglary conviction under Florida Statute §§ 810.02(l)(b . . . specifically, in Esprit, this Court held that a Florida burglary conviction under Florida Statute §§ 810.02 . . .
. . . burglary with assault or battery while armed with a deadly weapon, in violation of Florida Statutes §§ 810.02 . . .
. . . Davis of burglary with an assault or battery, in violation of section 810.02, Florida, Statutes (2013 . . .
. . . (1)(b)(1), Florida Statutes (2014), and one count of burglary of a dwelling in violation of section 810.02 . . .
. . . defendant pled no contest to two offenses, including burglary- of an occupied structure under section 810.02 . . . (2016),, but his judgment reflects a conviction for burglary of an occupied structure under section 810.02 . . .
. . . See § 810.02(l)(b)(l), (4)(b), Fla. Stat. (2014). . . .
. . . (reorganizing this. burglary statute into three subsections and moving it to section 810.02). . . .
. . . Burglary, as defined by section 810.02(l)(b)(l), Florida Statutes (2015), means “[e]ntering a dwelling . . .
. . . . § 810.02. . . .
. . . . § 810.02(1)(b), (3)(b), was a “crime of violence” under the residual clause of section 4B1.2(a)(2). . . .
. . . Statutes (2009); one count of armed burglary of a dwelling while inflicting death, in violation of section 810.02 . . . Section 810.02(1)(a), Florida Statutes, defines burglary as “entering or remaining in a dwelling, a structure . . .
. . . ’s error and remand this case for correction of the judgment to indicate a conviction under section 810.02 . . .
. . . See § 810.02(l)(b)(l), (l)(b)(4)(a), Fla. Stat. (2015). . . . See § 810.02(l)(b)(l), (l)(b)(4)(a); cf. A.D. v. . . .
. . . terms are defined in section 790.001, Florida Statutes contrary to Florida Statutes 775.087(2)(a)l, 810.02 . . .
. . . Burglary, which is proscribed in section 810.02, Florida Statutes (2009), is a separate offense from . . . to the dwelling or structure, or to property within the dwelling or structure in excess of $1,000. § 810.02 . . .
. . . . § 810.02(1)(a). . . .
. . . See § 810.02(l)(b), Fla. Stat. (2015). . . . See § 810.02(l)(b), Fla. . . .
. . . This instruction was adopted in 1981 and was amended in 1985 and 2017. 13.1 BURGLARY § 810.02, Fla. . . .
. . . “[e]nter[ed] a dwelling, a structure, or a conveyance with the intent to commit an offense therein 810.02 . . . ejntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein.” § 810.02 . . .
. . . . § 810.02 (1995); see also Williams v. Singletary, 78 F.3d 1510, 1513 (11th Cir. 1996). . . .
. . . . § 810.02 (1989). . . .
. . . illegally, was convicted in Florida of second degree burglary of a dwelling under Florida Statute § 810.02 . . . Stat. § 810.02(1)(b). . . . Id. § 810.02(3)(a)-(b). . . . Stat. § 810.02(3), the decisive question is whether it counts under § 2L1.2’s enumerated offenses clause . . .
. . . A burglary offense under s. 810.02. 6. . . . preserved and available for testing by the accused.” § 775.15(15)(a). - For burglary offenses (section 810.02 . . . commission of the offense, said defendant possessed a firearm or destructive device, in violation of s. 810.02 . . . Section 810.02(2), Florida Statutes (1990), the statute under which Smith was charged, provides in pertinent . . . The State could have alleged, pursuant to section 810.02(2)(a), rather than (2)(b)), that Smith committed . . .
. . . . § 810.02(l)(b)(2) (West 2007 & Supp. 2016) Ga. Code Ann. § 16-7-1 (2011 & Supp. 2016) 720 III. . . . Ann. § 810.02; Ga. Code Ann. § 16-7-1; Haw. Rev. Stat, § 708-810; 720 III. Comp. Stat. . . . Ann. § 810.02; N.J. Stat. Ann. 2C:18-2). . See Model Penal Code § 221.1 (Am. . . .
. . . on drug offender probation where he was convicted of third-degree felony of burglary under section 810.02 . . .
. . . S.A.W., a juvenile, pleaded guilty to burglary, in violation of section 810.02, Florida Statutes (2014 . . .
. . . . § 810.02(l)(b)(l). . . . Stat. § 810.02(l)(b)(l). . . . Stat. § 810.02(l)(b)(l) ]. The former requires an unlawful entry [into a building or structure]. . . .
. . . reasonable doubt that the defendant actually “[e]nter[ed] a dwelling, a structure, or a conveyance,” see § 810.02 . . .
. . . A burglary' offense under s. 810.02. 6. . . .
. . . See §§ 810.02(2)(b); 784.045(l)(a), (2); 775.087(l)(a), (b), Fla. Stat. (2013). . . . (1) because the use of a weapon or firearm was an essential element of armed burglary under section 810.02 . . .
. . . See § 810.02(2), Fla. Stat. (1991); Johnson v. State, 60 So.3d 1045 (Fla.2011); Betancourt v. . . .
. . . . § 810.02(3) (1995), second degree burglary of a dwelling. . . . Stat. § 810.02 does not qualify as a violent felony. . . .
. . . See § 810.02, Fla. Stat. (2015). . . .
. . . In relevant part, section 810.02(l)(b)l., Florida Statutes (2015), defines burglary as “[e]ntering a . . . Section 810.02(1) specifically exempts from its purview premises that are open to the public at the time . . .
. . . See §§ 810.02(3)(a), 775.082(3)(d), Fla. Stat. (2012). . . .
. . . See §§ 810.02(2)(a), 921.0022(3)(h), 921.0024(l)(a), Fla. Stat (2009). . . .
. . . . § 810.02(l)(b)(l), A motor vehicle is a conveyance. Id. § 820.011(3). . . . .
. . . . § 810.02(1), (3); aggravated fleeing or eluding, id, § 316.1935(3)(a); grand theft, id, § 812,014(1 . . .
. . . burglary of a dwelling, possession of burglary tools, and grand theft of a motor vehicle under sections 810.02 . . . ejntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein _” § 810.02 . . . To constitute burglary, the place entered must be "a dwelling, a structure, or a conveyance.” § 810.02 . . .
. . . See §§ 775.082(9)(a)(1)(q), 775.084(4)(a)(2), 810.02(3)(b), Fla. Stat. (2008); State v. . . .
. . . .” § 810.02(l)(b)(l), Fla. Stat. (2014). . . . juvenile’s intent to commit an offense at the time he enters the dwelling, structure, or conveyance. § 810.02 . . .
. . . . § 810.02(2)(b), Fla. Stat. (1994). . . .
. . . . § 810.02. . . .
. . . Stat.aNN, § 810.02(l)(a) (West 2011). . . . Section 810.011 defines the term “structure” used in § 810.02 as “a building of any kind, either temporary . . . Section 810.011 defines- the term “dwelling” used in § 810.02 as a building or conveyance of any kind . . . 713 F.3d 1332, 1345 (11th Cir.2013) (stating that it is impossible for Florida’s burglary statute, § 810.02 . . .
. . . . § 810.02. . . .
. . . See §§ 316.063(1), 316.1935(1), 810.02(1)(b)(4), Fla. Stat. (2013). . . .
. . . . § 810.02(3)(b), was not a crime of violence under the residual clause of U.S.S.G. § 4B1.2(a)(2). . . . Stat. § 810.02(3)(b) qualifies as a crime of violence under the Sentencing Guidelines. . . . Stat. § 810.02(3)(b) involved a serious potential risk of physical injury to another, and thus it was . . .
. . . his conviction and sentence for attempted burglary of an occupied dwelling in violation of sections 810.02 . . .
. . . . § 810.02, which the court concluded qualified as violent felonies for ACCA purposes. . . . Stat. § 810.02, failed to meet the requirements for “burglary” as enumerated in section 924(e)(2)(B)( . . . Stat. § 810.02 does not qualify as a generic burglary as enumerated in 18 U.S.C. § 924(e)(2)(B)(ii).” . . . Stat. § 810.02 qualified as violent felonies under the ACCA’s residual clause. Id. at 4-9. . . .
. . . The first sentence imposed was for unarmed burglary of an occupied dwelling, contrary to sections 810.02 . . . in that case was for one count of unarmed burglary of an unoccupied conveyance, contrary to sections 810.02 . . . The first was for unarmed burglary of an unoccupied conveyance, contrary to sections 810.02(l)(b) and . . . The first two counts were for burglary of an unoccupied structure, contrary to sections 810.02(l)(b) . . . The third sentence in this case was for burglary of an unoccupied structure, contrary to sections 810.02 . . .
. . . . § 810.02[1]). . . .
. . . burglary as “the intent to commit an offense therein [within a dwelling, structure, or conveyance] —” § 810.02 . . . See, § 810.02, Fla.Stat. (1983).... . . .
. . . See §§ 806.13(l)(a), (b)(2), 810.02(l)(b), (3), Fla. Stat. (2013). . . . See § 810.02(l)(a). Evaluating whether Mr. . . . See §§ 810.02(3), 775.082(3)(d). Mr. . . .
. . . See § 810.02, Fla. . . . federal district court, which correctly determined that by reading the word “structure” in section 810.02 . . .
. . . . § 810.02(2)(a)? Fla. Stat. (2011). . . .
. . . See § 810.02(l)(b)(i), (2)(a), Fla. Stat. (2011). ’ . See § 787-.01(l)(a)(4). . . . .
. . . . §§ 787.01(2), 810.02(2), 812.13(2)(a), Fla. Stat. (1990). Woodberry was convicted as a principal. . . .
. . . . § 810.02, qualified as a violent felony under the residual clause of the ACCA. . . .
. . . See §§ 812.13(2)(a); 810.02(2)(b), Fla. Stat. (2012). . . .
. . . . § 810.02(3)(b) was not a “crime of violence” within the meaning of U.S.S.G. § 4B1.2(a)(2) and thus . . . Stat. § 810.02(3)(b) falls within the scope of the clause. Matchett, 802 F.3d at 1195-97. . . .
. . . the district court in applying § 2K2.1— second-degree burglary of a dwelling under Florida Statute § 810.02 . . . Stat. § 810.02(l)(b), (3), qualifies as a crime of violence under § 4B1.2(a)(2), Matchett likewise controls . . . addressed whether a prior conviction for burglary of an unoccupied dwelling under Florida Statute § 810.02 . . .
. . . See § 810.02(1)(b)2.a., Fla. Stat. (2013). . . .
. . . .” § 810.02, Fla: Stat. (1986). . . . entering or remaining in a structure or a conveyance with the intent to commit an offense therein.” § 810.02 . . .
. . . Offenses Comment This instruction was adopted in 2013 [131 So.3d 720] and amended in 2015. 13.1 BURGLARY § 810.02 . . .
. . . . § 810.02(l)(b), (3)(b), were not “crime[s] of violence.” . . . Stat. § 810.02(l)(b), (3)(b), were “crime[s] of violence” because they “involve[d] conduct that presents . . . Stat. § 810.02(l)(b), (3)(b), does not fall under that definition. . . . Stat. § 810.02(l)(b), (3)(b), we must decide only whether that crime “categorically pose[s] a serious . . .