5D07-3841 Edward Tindall v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-3841

Case Date: 12/29/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2008

EDWARD TINDALL, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed January 2, 2009 Appeal from the Circuit Court for Orange County, Bob LeBlanc, Judge. James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D07-3841

TORPY, J. Appellant challenges his conviction for burglary of a structure, arguing that the State failed to prove all the elements of the crime and that the jury was improperly instructed. We affirm. Appellant crawled under a vacant house and cut and removed copper pipe. The wood frame house was supported by a cinder block foundation, permitting access to its

underside through a crawl space. Appellant was charged with burglary of a structure. Through a motion for directed verdict, he urged that because entry into the open space under the home did not constitute "entry" into a "structure," the State failed to prove the crime. The trial court denied the motion. We agree with the trial court. Appellant penetrated the invisible, vertical plane into the airspace of the house by crawling under the house to gain access to the pipes and thus "entered" the house. See Barton v. State, 797 So. 2d 1276, 1278 (Fla. 4th DCA 2001) (entry into conveyance occurred when defendant crossed invisible plane over bed of pickup truck). The house is a "structure" because it is a building and it has a roof.

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