RAMON ALVAREZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A burglary conviction is valid when initial consent to enter is obtained by fraud or deceit, even if the occupant later commits an offense.
Defendant gained entry into victims' home by subterfuge, then committed robbery at gunpoint. He was convicted of several offenses, including burglary.…
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SCHWARTZ, Chief Judge.
After the defendant gained entry into the victims’ home on the subterfuge that he wished to use the bathroom, he pulled a gun on the residents, tortured them, and stole their cash and jewelry. On this appeal from his conviction for several offenses, he claims that his burglary conviction does not survive the Supreme Court’s opinion in Delgado v. State, — So. 2d -, 2000 WL 1205960 (Fla. Case No. SC88,638, opinion filed, August 24, 2000)[25 FLW S631]. We disagree. Delgado held only that a person known to the occupant who was consensually invited into her premises may not be held guilty of a burglary merely because she later commits an offense within the structure. Accord Bledsoe v. State, 764 So. 2d 927 (Fla. 2d DCA 2000); Stenson v. State, 756 So. 2d 118 (Fla. 3d DCA 2000). There is nothing in Delgado however, which affects the rule reflected by our recent holding in Thomas v. State, 742 So. 2d 326 (Fla. 3d DCA 1999), review denied, 767 So. 2d 464 (Fla.2000), that a burglary does occur when the initial consent to enter is secured by fraud. Indeed, Delgado cites with approval People v. Hutchinson, 124 Misc.2d 487, 477 N.Y.S.2d 965 (Sup.Ct.1984), which so holds. Hutchinson says:
If this jury concludes that the defendant was in the complainant’s apartment with genuine license, that is, with her consent obtained without deceit, the fact that he was unwelcome after he pulled the knife does not convert his licensed entry into an unlawful remaining. His licensed presence there is not revoked by the commission of a criminal act. (e.s.)
124 Misc.2d at 492, 477 N.Y.S.2d at 968.
The appellant also complains of several comments made by the prosecutor in closing argument. We find nothing wrong in the statements in question.
Affirmed.
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Johnson v. State, 921 So. 2d 490 (Fla. 2005)…at all and will not serve as a defense to burglary. See Schrack v. State, 793 So. 2d 1102 (Fla. 4th DCA 2001) (affirming burglary conviction after Delgado where defendant gained entry by concocting a story about a surprise party); Alvarez v. State, 768 So. 2d 1224, 1225 (Fla. 3d DCA 2000) (holding that defendant lacked consent to enter where he gained entry into the victim’s house on the subterfuge that he wished to use the bathroom); Gordon v. State, 745 So. 2d 1016 (Fla. 4th DCA 1999) (holding that defendan…
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Schrack v. State, 793 So. 2d 1102 (Fla. 4th DCA 2001)…t 1018 (quoting Howard, 400 So. 2d at 1329). As the trial court recognized, when consent to enter is obtained by trick or fraud there is actually no consent at all. See id. Delgado does not change this general principle of law. See Alvarez v. State, 768 So. 2d 1224 (Fla. 3d DCA 2000)(affirming burglary conviction post-Delgado where defendant gained entry into the victims’ home on the subterfuge that he wished to use the bathroom); see also Eltaher v. State, 777 So. 2d 1203 (Fla. 4th DCA 2001)(relying on Delgad…
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Marcel S. Smith v. Crosby, 872 So. 2d 279 (Fla. 4th DCA 2004)…state can be factually distinguished from this case. See Schrack v. State, 793 So. 2d 1102 (Fla. 4th DCA 2001)(affirming burglary conviction after Delgado where defendant gained entry by concocting a story about a surprise party); Alvarez v. State, 768 So. 2d 1224, 1225 (Fla. 3d DCA 2000)(hold-ing that defendant lacked consent to enter where he gained entry into the victim’s house on the subterfuge that he wished to use the bathroom); Gordon v. State, 745 So. 2d 1016 (Fla. 4th DCA 1999)(holding that defendant…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Darrin L. Bledsoe v. State, 764 So. 2d 927 (Fla. 2d DCA 2000)
- Thomas v. State, 742 So. 2d 326 (Fla. 3d DCA 1999)
- Stenson v. State, 756 So. 2d 118 (Fla. 3d DCA 2000)