District Appellate Court Reverses Case Where Defendant was Overcharged

Recently, the First District Court of Appeals heard a case overcharging a defendant. Colbert v. State, 37 Fla. L. Weekly D264a (Fla. 1st DCA 2012). In Colbert, Harley Colbert was charged with burglary to a dwelling. He was accused of stealing a bicycle from the outside of Alejandro Rojas’ home. According to the evidence presented:
“Mr. Rojas resided in a two-story townhouse. Protruding from underneath the townhouse’s front door was a concrete pad that connected to a front walkway. One side of the concrete pad was open to the front yard, while the other side abutted a layer of mulch. On the opposite side of the mulch was the exterior wall of the townhouse’s garage. The concrete pad and mulch were partially covered by the eave of the garage and the townhouse’s second floor balcony, which was not supported by posts. The concrete pad and mulch were both visually and physically open to the street… Rojas’s bicycle was sitting on the mulch between the concrete pad and the wall of the garage. At some point, Rojas saw Colbert walking down his driveway with the bicycle.” Id.

Under Section 810.011(2), a “dwelling” is defined 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.” Id. (citing Fla. Stat. § 810.011(2)).

In Colbert, the question was whether the area from which he stole the bicycle was an “attached porch” pursuant to definition of a “dwelling” as provided in section 810.011(2), Florida Statutes (2010). The court ruled that it was not stating, “the area outside of Rojas’s front door was both physically and visually open to the general public. Consequently, the area from which the bicycle was taken does not comport with the concept of an ‘attached porch’ under the statute.” Id. Therefore, he should have never been convicted of burglary. However, it is important to note that he could still be convicted of theft. The value of the bicycle will determine the degree of theft charge. If it is a petit theft, he will only be facing misdemeanor charges, but he is looking at felony if it is grand theft.