THOMAS JAMES BALTIMORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Burglary conviction reversed because jury instruction improperly allowed guilt based on consensual entry with later-formed intent, contrary to Delgado v. State which requires surreptitious remaining in the structure.
A jury instruction permitting conviction for burglary based on consensual entry with intent formed while remaining in the dwelling violates Delgado v. State because the remaining-in language applies only to surreptitious remaining.
[1] In a burglary prosecution, a jury instruction permitting conviction based on consensual entry into a dwelling with intent to commit an offense formed while remaining in t…
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Join FLexlaw to unlock all legal intelligence“the 'remaining in' language applies only in situations where the remaining in was done surreptitiously”
Delgado v. State holding on when remaining-in language may be used in burglary instructions
Thomas James Baltimore was convicted of burglary of a dwelling allegedly occurring on May 11, 2001. The jury was instructed he could be found guilty e…
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SALCINES, Judge.
Thomas James Baltimore appeals his conviction for burglary of a dwelling which allegedly occurred on May 11, 2001. Baltimore has asserted that fundamental error occurred because the jury was instructed that he could be found guilty of burglary, even with consensual entry into the victim’s dwelling, if Baltimore formed the intent to commit an offense either before entering or while “remaining in” the structure. The “remaining in” language of the jury instruction was contrary to the rule announced in Delgado v. State, 776 So. 2d 233 (Fla.2000), in which the supreme court held that “the ‘remaining in’ language applies only in situations where the remaining in was done surreptitiously.” 776 So. 2d at 240. In the present case, there was no evidence presented at trial to support a “surreptitious remaining in” the dwelling by Baltimore. His conviction must be reversed and remanded for a new trial.
In concluding that Delgado applies to Baltimore’s case, we follow our holding in Smith v. State, 867 So. 2d 617 (Fla. 2d DCA 2004), in which we aligned this court with the views of the First District Court of Appeal in Foster v. State, 861 So. 2d 434, 442-43 (Fla. 1st DCA 2002) (opinion on rehearing).
Reversed and remanded for new trial.
FULMER, J., and DANAHY, PAUL W., Senior Judge, Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Delgado v. State, 776 So. 2d 233 (Fla. 2000)
- Foster v. State, 861 So. 2d 434 (Fla. 1st DCA 2001)
- Sherod Dion Luke v. State, 867 So. 2d 617 (Fla. 2d DCA 2004)
- Smith v. State, 867 So. 2d 617 (Fla. 2d DCA 2004)