ROBERT LASTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed convictions for armed robbery and shooting but reversed the burglary conviction because the convenience store was open to the public at the time, which is a complete defense under Florida Statute § 810.02(1).
A burglary conviction cannot stand when the premises were open to the public at the time of entry, as this is a complete statutory defense under § 810.02(1), Fla. Stat.
[1] A burglary conviction is barred by statute when the premises were open to the public at the time of entry, regardless of the defendant's intent to commit theft.
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Join FLexlaw to unlock all legal intelligence“That the premises are open to the public is a complete defense to a burglary charge, avoiding the absurd result of State v. Shult, 380 N.W. 2d 352 (S.D.1985[1986]) (pizza thief guilty of burglary because he entered store with intent to shoplift).”
Court explaining the statutory defense to burglary when premises are open to the public.
Appellant was convicted of armed robbery and shooting of a convenience store clerk, and also convicted of burglary of that same convenience store.…
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PER CURIAM.
The appellant challenges convictions and sentences imposed as a consequence of an armed robbery and shooting of a convenience store clerk. We affirm all the convictions and sentences, except the conviction and sentence for burglary which we reverse because the record reveals that the convenience store was “at the time open to the public.” See § 810.02(1), Fla. Stat.; Collett v. State, 676 So. 2d 1046 (Fla. 1st DCA 1996). We certify conflict with Garvin v. State, 685 So. 2d 17 (Fla. 3d DCA 1996), although we note that the result in Garvin is inexplicably inconsistent with the following language from that court’s opinion in Ray v. State, 522 So. 2d 963, 967 n. 6 (Fla. 3d DCA), rev. denied, 531 So. 2d 168 (Fla.1988):
Happily, we need not concern ourselves with the potential elevation of a shoplifting offense to a burglary. This is so because Section 810.02, Florida Statutes (1987), precludes a burglary charge where “the premises are open to the public.” That the premises are open to the public is a complete defense to a burglary charge, avoiding the absurd result of State v. Shult, 380 N.W. 2d 352 (S.D.1985) (pizza thief guilty of burglary because he entered store with intent to shoplift). See State v. Graney, 380 So. 2d 500 (Fla. 2d DCA 1980); Arable v. State, 699 P. 2d 890 (Alaska App. 1985).
AFFIRMED IN PART AND REVERSED IN PART.
JOANOS, ALLEN and WEBSTER, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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)
- Garvin v. State, 685 So. 2d 15 (Fla. 3d DCA 1996)
- State v. Graney, 380 So. 2d 500 (Fla. 2d DCA 1980)
- Loeffler v. Fla. Dep't of Bus. & Prof'l Reg., 739 So. 2d 150 (Fla. 1st DCA 1999)