CLARENCE GERALD BROWN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Brown appeals his conviction for first-degree murder, armed robbery, and armed burglary following a jury trial. The appellate court reverses the armed burglary conviction based on Miller v. State, which established that premises open to the public constitute a complete defense to burglary, while affirming the murder and robbery convictions.
The court reversed Brown's armed burglary conviction and sentence because the grocery store was open to the public, which constitutes a complete defense to burglary under Miller v. State. The first-degree murder and armed robbery convictions were affirmed as the appellant raised no meritorious issues regarding those counts.
[1] The fact that premises are open to the public constitutes a complete defense to a burglary charge.
[2] A defendant meets the burden of establishing the affirmative defense of consent to burglary by demonstrating that the premises were open to the public at the time of entr…
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Join FLexlaw to unlock all legal intelligence“if a defendant establishes that the premises were open to the public, then this is a complete defense”
Establishes the legal rule from Miller v. State that premises open to the public constitute a complete defense to burglary
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Join FLexlaw to unlock all legal intelligenceBrown and co-defendants entered a grocery store that was open to the public with intent to commit crimes. Brown was convicted by jury of first-degree …
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GREEN, J.
This appeal arises from a final judgment of conviction and sentence for first degree murder, armed robbery, and armed burglary after a jury trial. Based upon the supreme court’s recent decision in Miller v. State, No. 85,744 (Fla. Apr. 1, 1999), we reverse the appellant’s conviction and sentence for armed burglary.
Section 810.02(1), Florida Statutes (1995), defines burglary as the “entering or remaining in a dwelling, a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” (emphasis added). In Miller, the supreme court held that if a defendant establishes that the premises were open to the public, then this is a complete defense. See No. 85,744 at 3; see also Collett v. State, 676 So. 2d 1046, 1047 (Fla. 1st DCA 1996) (reasoning that “[Pjremises are either open to the public or they are not, and the fact that persons with criminal intent have not been given permission to enter has no effect on whether premises are open to the public.”); Ray v. State, 522 So. 2d 963, 967 n. 6 (Fla. 3d DCA 1988) (stating “that the premises are open to the public is a complete defense to a burglary charge[.]”). The state properly concedes that the grocery store was open to the public when the appellant and his co-defendants entered the same. The appellant thus met his burden of establishing the affirmative defense of consent. See Miller, No. 85,744 at 4. We therefore reverse his conviction and sentence for armed burglary.
We find no merit to appellant’s remaining issue on appeal and accordingly, affirm his conviction and sentences on the remaining two counts.
Reversed in part and affirmed in part.
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Citator
Cited By
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Vargas v. State, 751 So. 2d 665 (Fla. 3d DCA 2000)…ime open to the public.” Fla. Stat. § 810.02(1) (1993). It is a complete defense to the charge of burglary if the defendant can establish that the premises were open to the public. See Miller v. State, 733 So. 2d 955, 957 (Fla.1998); Brown v. State, 731 So. 2d 773 (Fla. 3d DCA 1999). Elite Photography remained open until 2:00 a.m. every night. The defendant entered the business during its regular business hours. While it is true that the manager of Elite physically had to open the door to customers, the act o…
Authorities Cited
- RAY v. State, 522 So. 2d 963 (Fla. 3d DCA 1988)
- Hershell Curtis Collett v. State, 676 So. 2d 1046 (Fla. 1st DCA 1996)