WILLIAM HOMER HOWARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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HURLEY, Judge.
Defendant was convicted of burglary and attempted sexual battery. The sole meritorious issue on appeal is whether the burglary conviction must be reversed due to the fact that the defendant obtained consent to enter the victim’s home by telling her that his van had broken down and asking to use her telephone.
Entering a structure with consent is normally a defense to a burglary charge. § 810.02, Fla.Stat. (1979); McEver v. State, 352 So. 2d 1213 (Fla. 2d DCA 1977), cert. denied, 364 So. 2d 888 (Fla.1978). However, it is clear that entrance gained by trick or fraud will support a conviction for burglary. Pedone v. State, 341 So. 2d 532 (Fla. 3d DCA 1977), cert. denied, 355 So. 2d 516 (Fla.1978); 13 Am.Jur.2d Burglary § 13. This is because consent to enter obtained in such a manner is actually no consent at all and, therefore, the entrance is unauthorized. State v. Ortiz, 92 N. M. 166, 584 P. 2d 1306 (1978).
We hold that the misrepresentations made by the defendant in this case rise to the level of trick or fraud and nullify the consent to enter obtained from his victim. The judgment is therefore
AFFIRMED.
DOWNEY and HERSEY, JJ., concur.
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State v. Hicks, 421 So. 2d 510 (Fla. 1982)…02(1), Florida Statutes (1979), which the state must allege in an information or indictment. We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and find conflict with State v. Jackson, 281 So. 2d 353 (Fla.1973); Howard v. State, 400 So. 2d 1329 (Fla. 4th DCA 1977), cert. denied, 364 So. 2d 888 (Fla.1978). We hold that consent to entry is an affirmative defense to, rather than an essential element [*511] of, burglary, and quash the decision of the district court. Hicks was charged by an am…
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Abukareem Eltaher v. State, 777 So. 2d 1203 (Fla. 4th DCA 2001)…r, there is no trespass. See State v. Jackson, 281 So. 2d 353, 354-55 (Fla.1973) (citing Cannon v. State, 102 Fla. 928, 136 So. 695 (1931)). Here, there was no competent substantial evidence presented of entry by fraud or trick. See Howard v. State, 400 So. 2d 1329, 1329 (Fla. 4th DCA 1981) (stating that “entrance gained by trick or fraud will support a conviction for burglary”). We also reject appellant’s claim that he was improperly punished for exercising his right to a trial because the sentencing judge t…
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Schrack v. State, 793 So. 2d 1102 (Fla. 4th DCA 2001)…to Mr. Bode’s home was by consent. He relies upon the Florida Supreme Court’s recent opinion in Delgado v. State, 776 So. 2d 233 (Fla.2000) , [*1104] which he contends overruled Gordon v. State, 745 So. 2d 1016 (Fla. 4th DCA 1999), Howard v. State, 400 So. 2d 1329 (Fla. 4th DCA 1981), and Thomas v. State, 742 So. 2d 326 (Fla. 3d DCA 1999). We conclude that these cases are unaffected by Delgado and reiterate that entrance gained into a home by trick or fraud will support a conviction for burglary. See Gordon,…
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- Pedone v. State, 341 So. 2d 532 (Fla. 3d DCA 1977)
- McEVER v. State, 352 So. 2d 1213 (Fla. 2d DCA 1977)