Summary
holding that defendant lacked consent to enter where he gained entry into the victim's house on the subterfuge that he wished to use the bathroom
Summary of this case from Johnson v. StateOpinion
Case No. 3D99-3237
Opinion filed October 4, 2000. July Term, A.D. 2000
An Appeal from the Circuit Court for Dade County, Roberto Pineiro, Judge; Lower Tribunal No. 97-035987.
Bennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General and Jill K. Traina, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and FLETCHER and SHEVIN, JJ.
After the defendant gained entry into the victims' home on the subterfuge that he wished to use the bathroom, he pulled a gun on the residents, tortured them, and stole their cash and jewelry. On this appeal from his conviction for several offenses, he claims that his burglary conviction does not survive the Supreme Court's opinion in Delgado v. State, ___ So.2d ___ (Fla. Case no. SC 88,638, opinion filed, August 24, 2000)[25 FLW S631]. We disagree. Delgado held only that a person known to the occupant who was consensually invited into her premises may not be held guilty of a burglary merely because she later commits an offense within the structure. Accord Bledsoe v. State, 764 So.2d 927 (Fla. 2d DCA Case no. 2D99-1934, opinion filed, August 16, 2000)[25 FLW D1972]; Stenson v. State, 756 So.2d 118 (Fla. 3d DCA 2000). There is nothing in Delgado however, which affects the rule reflected by our recent holding in Thomas v. State, 742 So.2d 326 (Fla. 3d DCA 1999), review denied, No. SC 96655 (Fla. June 2, 2000), that a burglary does occur when the initial consent to enter is secured by fraud. Indeed, Delgado cites with approval People v. Hutchinson, 124 Misc.2d 487, 477 N.Y.S.2d 965 (Sup. Ct. 1984), which so holds. Hutchinson says:
If this jury concludes that the defendant was in the complainant's apartment with genuine license, that is, with her consent obtained without deceit, the fact that he was unwelcome after he pulled the knife does not convert his licensed entry into an unlawful remaining. His licensed presence there is not revoked by the commission of a criminal act. (e.s.)
124 Misc.2d at 492, 477 N.Y.S.2d at 968.
The appellant also complains of several comments made by the prosecutor in closing argument. We find nothing wrong in the statements in question.
Affirmed.