ROBERTO RUIZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Roberto Ruiz was convicted of burglary, kidnapping, and misdemeanor battery following a home invasion. The appellate court reversed the burglary conviction because the evidence established consensual entry into the victim's apartment, which under Delgado v. State precludes a burglary conviction.
The burglary conviction must be reversed because once the defendant established consensual entry into the home and that he did not remain surreptitiously, the evidence was insufficient to establish burglary under Delgado v. State.
[1] A conviction for burglary is improper when the evidence shows the defendant's entry into the dwelling was consensual and the defendant did not surreptitiously remain ther…
[2] A jury instruction that permits a burglary conviction based on a consensual entry followed by a later withdrawal of consent is erroneous.
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“Once Ruiz met his burden of establishing consensual entry into the home, and showed that he did not remain surreptitiously, the evidence was then insufficient to establish burglary.”
Establishes the legal standard that consensual entry precludes burglary liability regardless of later events
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRuiz was charged with two counts of sexual battery, burglary of an occupied dwelling, and kidnapping with intent to commit sexual battery. The trial c…
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FLETCHER, Judge.
We deny the motion for rehearing herein. However, we withdraw our prior opinion of June 20, 2001 and substitute the following opinion:
Roberto Ruiz was charged by information with two counts of sexual battery, burglary of an occupied dwelling with intent to commit an offense therein, and kidnaping with intent to commit or facilitate the sexual battery. The court denied defense motions for judgment of acquittal on the kidnaping and burglary charges, and a jury found Ruiz guilty of misdemeanor battery (as a lesser included offense of the sexual battery charges), burglary with assault or battery, and kidnaping.
Ruiz argues that, pursuant to Delgado v. State, 776 So. 2d 233 (Fla.2000), his conviction for burglary must be reversed because he entered the victim’s apartment with her permission. Following Delgado,1 we agree that the trial court erred by denying appellant’s motion for judgment of acquittal on the burglary charge because there exists sufficient evidence in the record that entry was consensual and that Ruiz did not surreptitiously remain in the apartment. See, Delgado at 240. The record indicates that the jury was erroneously instructed that it could find Ruiz guilty of burglary even if the initial entry was consensual and if the victim later withdrew consent. Once Ruiz met his burden2 of establishing consensual entry into the home, and showed that he did not remain surreptitiously, the evidence was then insufficient to establish burglary. Delgado, 776 So. 2d 233.
We reverse the conviction for burglary, affirm the remaining convictions, and remand for proceedings consistent with this opinion.
. We are aware of the creation of section 810.015, Florida Statutes (2001) by which the legislature has expressed its disagreement with Delgado. However, see Braggs v. State, 815 So. 2d 657(Fla. 3d DCA 2002). As in Braggs we certify that we have passed on the following question of great public importance:
WHETHER SECTION ONE OF CHAPTER 2001-58, LAWS OF FLORIDA, HAS LEGISLATIVELY OVERRULED DELGADO v. STATE, 776 So. 2d 233 (Fla.2000), FOR CRIMES COMMITTED ON OR BEFORE JULY 1, 2001?
. Consensual entry is an affirmative defense to burglary under Delgado.
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Citator
Cited By
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Foster v. State, 861 So. 2d 434 (Fla. 1st DCA 2001)…gislative intent and that this Court’s interpretation of the burglary statute in Jimenez’s direct appeal was in harmony with legislative intent. Id. at 512 (citation omitted). The majority, like the Third District Court of Appeal in Ruiz v. State, 841 So. 2d 468 (Fla. 3d DCA 2002) (on reh’g), and Braggs v. State, 815 So. 2d 657 (Fla. 3d DCA 2002) (en banc), refuses to apply the above language to this appeal because the supreme court in Jimenez did not expressly overrule Delgado. See ante at 439. I am of the…
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State v. Ruiz, 863 So. 2d 1205 (Fla. 2003)…ied the following question of great public importance: WHETHER SECTION ONE OF CHAPTER 2001-58, LAWS OF FLORIDA, HAS LEGISLATIVELY OVERRULED DELGADO V. STATE, 776 So. 2d 233 (Fla.2000), FOR CRIMES COMMITTED ON OR BEFORE JULY 1, 2001. Ruiz v. State, 841 So. 2d 468, 468 n. 1 (Fla. 3d DCA 2002); Braggs v. State, 815 So. 2d [*1207] 657, 661 (Fla. 3d DCA 2002).1 We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because the certified question posed by the Third District raises constitutional issues regardin…
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Burnes v. State, 861 So. 2d 78 (Fla. 3d DCA 2003)…l decision in Delgado was issued February 3, 2000. The opinion was withdrawn and superseded on rehearing on August 24, 2000, in Delgado v. State, 776 So. 2d 233 (Fla.2000). . Fitzpatrick, 859 So. 2d at 493. . As we did in Braggs and Ruiz v. State, 841 So. 2d 468, 469 n. 1 (Fla. 3d DCA 2002), review granted, 829 So. 2d 919 (Fla.2002), we certify that we have passed on the following question of great public importance: WHETHER SECTION ONE OF CHAPTER 2001-58, LAWS OF FLORIDA, HAS LEGISLATIVELY OVERRULED DELGA…
Authorities Cited
- Delgado v. State, 776 So. 2d 233 (Fla. 2000)
- Curley Braggs v. State, 815 So. 2d 657 (Fla. 3d DCA 2002)