MICHAEL GLENN WILSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Michael Glenn Wilson appeals his conviction for burglary while armed, shooting into an occupied dwelling, aggravated assault, and battery. The appellate court affirmed the conviction, rejecting Wilson's arguments that the trial court erred in denying his motions for judgment of acquittal and mistrial.
The trial court properly denied both motions for judgment of acquittal and the motion for mistrial. Wilson's entry into his father-in-law's house without consent with intent to commit assault constitutes burglary under Florida law, and the prosecution's cross-examination question did not warrant a mistrial.
[1] A defendant's entry into a dwelling without consent for the purpose of committing an assault therein constitutes burglary.
[2] A prior appellate decision concerning a husband's entry into premises possessed by his wife is inapplicable when the premises are possessed by a third party.
Previewing 2 of 3 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“Such an act without question constitutes a burglary within the meaning of Section 810.02, Florida Statutes (1975).”
Establishes that Wilson's entry into the father-in-law's house without consent with intent to assault his wife constitutes burglary under Florida law.
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Join FLexlaw to unlock all legal intelligenceWilson entered his father-in-law's house without consent, where his wife temporarily resided, with intent to commit assault. The evidence at trial est…
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HUBBART, Judge.
The defendant Michael Glenn Wilson appeals from a conviction and sentence for burglary while armed, shooting into an occupied dwelling, aggravated assault, and battery, entered after a jury trial in the Circuit Court for the Eleventh Judicial Cir cuit of Florida. The defendant contends on appeal that the trial court erred in denying the defendant’s motion of judgment of acquittal on all charges made at the close of the state’s case and renewed at the close of all the evidence; and that the trial court erred in denying the defendant’s motion for a mistrial based on the prosecuting attorney’s cross-examination of the defendant at trial. We reject both contentions as lacking in merit and affirm.
The evidence adduced at the trial relating to the defendant’s guilt is overwhelming on all the charges for which he was convicted. The trial court was eminently correct in denying the defendant’s motions for judgment of acquittal at trial. As to the burglary charge, the state clearly established that the defendant entered his father-in-law’s house without the consent of said father-in-law for the purpose of assaulting his wife who temporarily resided therein. Such an act without question constitutes a burglary within the meaning of Section 810.02, Florida Statutes (1975).
The defendant’s reliance on Vazquez v. State, 350 So. 2d 1094 (Fla.3d DCA 1977), is misplaced. In that case, the court held that it is not a burglary for a husband who is physically separated from his wife to enter upon premises possessed by his wife without the wife’s consent with the intent to commit an offense therein if there is no legal separation agreement, restraining order or court decree limiting or ending consortium rights of the parties. In the instant case, the premises herein were indisputably possessed by the wife’s father wherein the wife temporarily resided thereby rendering Vazquez inapplicable. Contrary to the defendant’s contention, Vazquez does not stand for the sweeping proposition that an estranged husband may enter without criminal liability upon the premises of any person wherein his wife may temporarily be present. The holding of the case is confined solely to premises possessed by the wife wherein the husband has a legal right to be, not to premises possessed as here by a third party.
We further find no merit in the defendant’s contention that the trial court erred in denying the defendant’s motion for a mistrial based on a question propounded by the prosecuting attorney to the defendant upon cross-examination when such defendant testified at trial. The defendant made no objection to such question and we do not find that the question or the answer given warranted a mistrial. Perry v. State, 146 Fla. 187, 200 So. 525 (1941).
Affirmed.
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Thompson v. State, 368 So. 2d 670 (Fla. 3d DCA 1979)…SCHWARTZ, Judge. On the authority of Wilson v. State, 359 So. 2d 901 (Fla. 3d DCA 1978), we reject the defendant-appellant’s contention that he was privileged to trespass into the trailer where his wife was staying with a male friend. Because he made no objections below either to the court’s instructions or to the p…
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Cladd v. State, 398 So. 2d 442 (Fla. 1981)…zquez case was the first construction of the burglary statute in the context of the situation of a spouse who forcibly enters the premises of his marriage partner living separately but without any legally established separation. In Wilson v. State, 359 So. 2d 901 (Fla. 3d DCA 1978), cert. denied, 365 So. 2d 716 (Fla. 1978), the third district distinguished Vazquez and held that the burglary statute could be applied to a husband who forcibly entered his separated wife’s father’s home for the purpose of attack…1 / 2
Authorities Cited
- Perry v. State, 146 Fla. 187 (Fla. 1941)
- Vazquez v. State, 350 So. 2d 1094 (Fla. 3d DCA 1977)