EMILIO DIAZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Emilio Diaz appeals his conviction and sentence for burglary of an occupied dwelling. The Third District Court of Appeal affirms his conviction and sentence, rejecting his arguments about jury instructions on intent, officer testimony regarding fingerprints, and his sentencing as a violent career criminal.
The court affirmed Diaz's conviction and sentence. The jury instruction on intent was not fundamental error because the 'remaining in' language could be viewed as surplusage under the case facts. Any error from the detective's fingerprint testimony was harmless. Diaz's sentencing as a violent career criminal was affirmed because the court was bound by prior precedent in Delsol v. State, though the court found the argument persuasive.
[1] A jury instruction stating that intent for burglary can be formed at the time of "entering and/or remaining at the structure" is not fundamental error when the "remaining…
[2] Opinion testimony from a detective that fingerprints are unnecessary when a victim makes a positive identification is harmless error if the defendant is otherwise positiv…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the intent necessary to commit a burglary could be formed at the time of "entering and/or remaining at the structure."”
States Diaz's argument regarding the jury instruction on which he based his fundamental error claim.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn September 3, 1999, the owner of Florida Leather Supply heard glass breaking early in the morning and observed Diaz entering the business and attemp…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Burglary Of An Occupied Dwelling cases and more on FLexlaw
RAMIREZ, J.
Emilio Diaz appeals his judgment of conviction and sentence for burglary of an occupied dwelling. We affirm his conviction and sentence.
The owner of Florida Leather Supply testified that when he arrived at work in the early morning hours of September 3, 1999, he heard the sound of glass breaking. He observed Diaz enter his business and attempt to take a computer located a foot from the front door. When he yelled, Diaz ran away. The owner fell on the broken glass, but recovered a red tote bag from outside the door that contained a photograph of Diaz. The owner identified Diaz at trial.
Diaz argues that the trial court committed fundamental error by instructing the jury that the intent necessary to commit a burglary could be formed at the time of “entering and/or remaining at the structure.” He relies on the Florida Supreme Court cases of Delgado v. State, 776 So. 2d 233 (Fla.2000) and Floyd v. State, 27 Fla. L. Weekly S697, — So. 2d -, 2002 WL 1926223 (Fla. August 22, 2002), as well as the Fifth District case of Valentine v. State, 774 So. 2d 934 (Fla. 5th DCA 2001). We disagree because under the facts of our case the “remaining in” language may be viewed as mere surplusage. See Johne- kins v. State, 823 So. 2d 253 (Fla. 3d DCA 2002).
Diaz next complains of opinion testimony elicited from a police detective that fingerprints are not necessary where there is a positive identification made by the victim. A better question would have been whether the burglary unit dusts for fingerprints when the perpetrator leaves his photographic identification behind. But any error in allowing this testimony was clearly harmless.
Finally, Diaz assigns error in his sentence as a violent career criminal when his prior convictions were all for burglaries of unoccupied structures. We find the argument persuasive for the reasons stated in Chief Judge Schwartz’s dissent in Delsol v. State, 837 So. 2d 428, (2002), but we are bound by the results in that case and therefore affirm.1
Affirmed.
. We trust that the Office of the Public Defender will need no encouragement to file a motion for rehearing en banc of this issue.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Ubilla v. State, 8 So. 3d 1200 (Fla. 3d DCA 2009)…ent career criminal” under section 775.084 of the Florida Statutes has been repeatedly rejected by this Court. See Hernandez v. State, 960 So. 2d 816, 817 (Fla. 3d DCA 2007) (citing Delsol v. State, 837 So. 2d 428 (Fla. 3d DCA 2002)); Diaz v. State, 837 So. 2d 436 (Fla. 3d DCA 2002); Rodriguez v. State, 826 So. 2d 464 (Fla. 3d DCA 2002). In a case strikingly similar to this one, this Court confirmed that convictions for burglary of an unoccupied structure qualify for sentencing as a violent career criminal wh…
-
Linnies G. Spikes v. State, 851 So. 2d 252 (Fla. 3d DCA 2003)…2003); Perez v. State, 840 So. 2d 1125 (Fla. 3d DCA 2003); Rodriguez v. State, 826 So. 2d 464 (Fla. 3d DCA 2002), rehearing denied with opinion, 837 So. 2d 1177 (Fla. 3d DCA), review denied, No. SC03-444, 848 So. 2d 1155 (Fla. 2003); Diaz v. State, 837 So. 2d 436 (Fla. 3d DCA 2002); Delsol v. State, 837 So. 2d 428 (Fla. 3d DCA 2002). Affirmed. * The crime date was November 23, 1997.…
-
Harris v. State, 849 So. 2d 449 (Fla. 3d DCA 2003)…ible felony” and therefore, it does qualify the appellant for sentencing under Section 775.084(l)(d), Florida Statutes (2000). Rodriguez v. State, 837 So. 2d 1177 (Fla. 3d DCA 2003); Delsol v. State, 837 So. 2d 428 (Fla. 3d DCA 2002); Diaz v. State, 837 So. 2d 436 (Fla. 3d DCA 2002). We remand this matter for resen-tencing because, as the State concedes, the trial judge mistakenly believed he was compelled to impose a violent career criminal sentence once the qualifying offenses were established. The trial…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Delgado v. State, 776 So. 2d 233 (Fla. 2000)
- Delsol v. State, 837 So. 2d 428 (Fla. 3d DCA 2002)
- Johnekins v. State, 823 So. 2d 253 (Fla. 3d DCA 2002)
- Valentine v. State, 774 So. 2d 934 (Fla. 5th DCA 2001)