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545 So. 2d 939

Docket No. 88-2387.

Dakes v. State

Willie Earl DAKES, Appellant, v. The STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided June 6, 1989.

Rehearing Denied July 28, 1989.

District Court of Appeal of Florida · decided 1989-06-06

Key passage — most relied on by later courts

“although the store itself was open to the public, the closed storeroom to which access was clearly restricted was not part of the premises open to the public, within the scope of section 810.02.”

quoted by 3 later decisions, including 786 So. 2d 1162 - Johnson v. State, 737 So. 2d 555 - Johnson v. State

Relies on 375 So. 2d 840 - Downer v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1989-06-06

How this case has been cited

Cited by 20 later decisions — most recently September 2016

20 state decisions

1001989199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*940 Bennett H. Brummer, Public Defender, and Joseph C. Brock, Sp. Asst. Public Defender, for appellant.

¶2Robert A. Butterworth, Atty. Gen., and Jorge Espinosa, Asst. Atty. Gen., for appellee.

¶3Before NESBITT, BASKIN and GERSTEN, JJ.

¶4BASKIN, Judge.

¶5Willie Earl Dakes entered the storeroom of a retail store during business hours and placed several hundred dollars worth of merchandise in a shopping bag. At the time Dakes entered the storeroom, the door leading to the room was unlocked; however, on the door were posted two signs: "authorized personnel only" and "associates only." Dakes was apprehended immediately upon leaving the store and was charged and convicted of burglary of an occupied structure in violation of section 810.02, Florida Statutes (1987), and petit theft. Dakes urges reversal of his burglary conviction because section 810.02(1) specifically exempts from its purview premises which are open to the public at the time the offense is committed. We hold that although the store itself was open to the public, the closed storeroom to which access was clearly restricted was not part of the premises open to the public, within the scope of section 810.02. See Downer v. State,375 So.2d 840 (Fla. 1979). Thus, we affirm Dakes' conviction.

¶6The record reflects that the storeroom which Dakes burglarized was unoccupied: the store detectives who observed Dakes take the merchandise were in an adjacent stockroom. When the trial court denied Dakes' motion for judgment of acquittal notwithstanding the jury verdict but corrected the judgment to reflect that the structure was unoccupied, it erroneously classified Dakes' crime as burglary of an unoccupied dwelling, a second degree felony. A retail store is not a dwelling. § 810.011(2), Fla. Stat. (1987). Section 810.02(3), Florida Statutes (1987), provides that burglary of an unoccupied structure which is not a dwelling is a felony of the third degree. Thus, Dakes' sentence was based on an incorrect scoresheet. We therefore remand to the trial court with directions to correct the scoresheet and to resentence Dakes.

¶7Affirmed in part; reversed in part; remanded with directions.

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