                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

K.H., a child,                      NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D15-4126

STATE OF FLORIDA,

      Appellee.

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Opinion filed March 11, 2016.

An appeal from the Circuit Court for Leon County.
Charles Dodson, Judge.

Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant
Attorney General, Tallahassee, for Appellee.




PER CURIAM.

      AFFIRMED.

WOLF and ROWE, JJ., CONCUR; MAKAR, J., CONCURS WITH OPINION.
MAKAR, J., concurring.



      At around 10:30 p.m., video cameras caught K.H., a juvenile, vaulting the

counter of a Watches Plus kiosk located in the middle of the main hallway at the

Tallahassee Mall, stealing three cell phones, three $2.00 bills and some postage

stamps. He claims he could not have committed the crime of burglary of a

structure—for which adjudication was withheld and probation imposed—because

the kiosk was not a “structure,” which is defined as “a building of any kind, either

temporary or permanent, which has a roof over it, together with the curtilage

thereof.” § 810.011(1), Fla. Stat. (2014). A plain reading of the statute requires

only that a temporary building, such as the kiosk at issue, have “a roof over it,”

which in this case is the roof over the entire enclosed mall’s footprint. See Smith v.

State, 632 So. 2d 136, 137 (Fla. 4th DCA 1994) (upholding eighteen convictions

for burglary of a structure where defendant broke into seventeen separate

businesses that “shared a common roof and the common area of the mall”). As a

contrast, if the statute more narrowly defined structure as a building “which has a

roof,” the kiosk at issue might not qualify because it lacks its own attached roof.

Likewise, a kiosk in an open-air market or bazaar without a “roof over it” might

not qualify under the existing statute; a portable structure with its own umbrella,

canopy, or sunshade presents a further variation for statutory interpretation.

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Because the kiosk at issue had a roof over it at the time of the burglary, I agree that

affirmance is proper.




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