Hodges v. State, 741 So. 2d 1262

Lead Opinion

PER CURIAM.

AFFIRMED.

COBB and GOSHORN, JJ., concur. W. SHARP, J., concurs specially, with opinion.

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Concurrence Opinion

W. SHARP, J.,

concurring specially.

Hodges’ point on appeal is that Miller v. State, 733 So.2d 955 (Fla.1998) should be applied retroactively to his case. Miller held that “open to the public” was a complete defense to the crime of burglary. It would have provided Hodges with a defense in this case, in which he was convicted of burglary. However, in order to be retroactively applied, a change in the law must represent a “fundamental” change. Witt v. State, 387 So.2d 922 (Fla.1980). What constitutes a “fundamental” change in the law is a rather fluid concept, not easily pinned down. However, I consider Miller a “refinement” of the law, and, without direction from the Florida Supreme Court, it should not be applied retroactively.

Case Details

Case Name: Hodges v. State

Court Name: District Court of Appeal of Florida

Date Published: Oct 8, 1999

Citations: 741 So. 2d 1262; 1999 WL 817799; 1999 Fla. App. LEXIS 13357; No. 99-2366

Docket Number: No. 99-2366

Court Abbreviation: Fla. Dist. Ct. App.