Harris v. State
2010 Fla. App. LEXIS 17699
| Fla. Dist. Ct. App. | 2010Background
- Harris was convicted of burglary of a dwelling under Fla. Stat. § 810.02(1)(b)2.c. after a co-defendant and Harris forced entry, restrained seven occupants, and stole a small amount of money.
- The entry occurred after knocking and pushing inside; Harris possessed a BB gun and participated in ordering victims to the floor and striking one with the BB gun.
- At trial, Harris moved for judgment of acquittal on the remaining-in/consent element; the trial court denied the motion and the jury convicted.
- Harris argues the State failed to prove a licensed or invited entry, a required element under the 2001 amendment to § 810.02(1)(b)2.c. and related authority.
- The court analyzes (i) the plain statutory language, (ii) legislative history following Delgado v. State, (iii) applicable case law, and (iv) the standard jury instruction for remaining-in burglary.
- The Florida Fifth District Court of Appeal reverses Harris’s burglary conviction, holds the remaining-in burglary requires proof of licensed or invited entry, and remands to vacate the judgment; other judgments remain affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does remaining in burglary require proof of licensed/invited entry? | Harris contends entry need not be licensed/invited due to 'notwithstanding' language. | State argues explicit licensed/invited entry is an element to prove remaining in. | Yes; licensed/invited entry is an element, so conviction reversal is required. |
Key Cases Cited
- Delgado v. State, 776 So.2d 233 (Fla. 2000) (legislature amended burglary to require licensed/invited entry)
- Ray v. State, 933 So.2d 716 (Fla. 4th DCA 2006) (no remaining-in instruction when entry not licensed/invited)
- Davis v. State, 892 So.2d 518 (Fla. 1st DCA 2004) (reversed remaining-in instruction when facts show no surreptitious remaining)