Summary
In Knight v. State, 983 So.2d 64 (Fla. 3d DCA 2008), the third district held, under facts indistinguishable from Dakes (and the present case) that the conviction of burglary of an occupied structure must be reduced to burglary of an unoccupied structure.
Summary of this case from Davis v. StateOpinion
No. 3D08-368.
May 14, 2008.
Appeal from the Circuit Court, Miami-Dade County, Dava J. Tunis, J.
Alex Knight, in proper person.
Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
Before COPE and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
This is an appeal from an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.
After a jury trial, the defendant was found guilty of burglary of an occupied structure, and petit theft. Defendant-appellant Knight argues, and we agree, that the facts of his case are indistinguishable from those set forth in Dakes v. State, 545 So.2d 939, 940 (Fla. 3d DCA 1989). On authority of Dakes, we conclude that the defendant's offense of burglary of an occupied structure must be reduced to the offense of burglary of an unoccupied structure. On this issue, we reverse the order now before us and remand with directions to reduce the charge, and to conduct a new sentencing hearing.
We affirm the denial of rule 3.850 relief on the remaining claims.
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.