Opinion
Case No. 1D00-3819.
Opinion filed August 28, 2002.
An appeal from the Circuit Court for Columbia County. Paul S. Bryan, Judge.
Nancy A. Daniels, Public Defender, Nancy L. Showalter, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
Appellant, Christopher Bryant Mosley, has raised five issues concerning his convictions for aggravated assault on a law enforcement officer, burglary of a conveyance, and grand theft auto. We affirm and address two of the issues of first impression. Appellant contends, based upon Delgado v. State, 776 So.2d 233 (Fla. 2000), that his burglary conviction was improper, because the case was tried in the wrong venue, and because the jury was erroneously instructed on the law regarding burglary.
Appellant unlawfully entered an automobile owned by James Jones while it was parked at a service station in Volusia County, on January 28, 1998. Approximately two months later, on March 11, 1998, appellant was apprehended while driving the same automobile in Columbia County. The case was tried in Columbia County over appellant's objection that venue on the burglary charge was improper in Columbia County, because he had unlawfully entered the vehicle only in Volusia County.
Appellant's first issue on appeal relating to venue arises fromDelgado, wherein the Florida Supreme Court considered a felony-murder conviction based upon the underlying crime of burglary of a dwelling. The state admitted that Delgado entered the house with consent, but it contended that consent had been withdrawn at some point. Thus, the question before the court was whether Delgado's act satisfied the "remaining in" method of committing burglary. In concluding that it did not, the court limited the "remaining in" theory as applying "only in situations where the remaining in was done surreptitiously." Delgado, 776 So.2d at 240. The court concluded that Delgado's consensual entry could not be punished as burglary, despite the fact that he committed murder while in the house, because he did not surreptitiously remain in the house.
Section 810.02(1), Florida Statutes (1997), defines "burglary" as "entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein[.]"
Although the Florida Legislature enacted section 810.015, Florida Statutes (2001), which states that the Florida Supreme Court improperly interpreted the burglary statute in Delgado and nullifies its holding, the statute did not become effective until May 25, 2001. Thus, burglary convictions that became final after August 24, 2000, when Delgado was issued, and before May 25, 2001, when section 810.015 became effective, are controlled by the Delgado ruling. See Foster v. State, 27 Fla. L. Weekly D1360 (Fla. 1st DCA June 12, 2002). Appellant's case falls within this window.
Since Delgado was decided, courts in several cases have focused on the two different methods by which burglary can be committed, that is, by "unlawful entry" and by "remaining in." For example, in Tinker v. State, 784 So.2d 1198 (Fla. 2d DCA 2001), the defendant entered his former girlfriend's apartment without permission and battered her. Over the defendant's objection, the court instructed the jury on both the "unlawful entry" and the "remaining in" theories of burglary. The Second District held that it was error to give the "remaining in" portion of the standard jury instruction, because the proof pertained to unlawful entry, and the state was required to prove that the defendant had intended to batter the victim when he unlawfully entered the dwelling. See also Foster (involving a lawful entry into a building without evidence of surreptitiously remaining in); Braggs v. State, 815 So.2d 657 (Fla. 3d DCA 2002) (en banc) (involving a lawful entry into a relative's home without evidence of surreptitiously remaining in).
Valentine v. State, 774 So.2d 934 (Fla. 5th DCA), review dismissed, 790 So.2d 1111 (Fla. 2001), and Rampersad v. State, 752 So.2d 94 (Fla. 3d DCA 2000), appear to be the only cases involving burglary of a conveyance following Delgado. In Valentine, the defendant entered a vehicle he purchased for his girlfriend's use and while he was inside the automobile, he assaulted his girlfriend. The court noted that the standard instruction appeared to be incomplete in light of Delgado, because the facts in the case did not support a surreptitious-remaining-in charge. In Rampersad, the defendant reached into a car he was renting and struck his wife; thus, he did not unlawfully enter the car or surreptitiously remain therein.
Based upon Delgado and the above cases, appellant argues in this case that because he unlawfully entered the car, the state could only pursue the burglary conviction under the "unlawful entry" theory, and he argues that he unlawfully entered the vehicle only in Volusia County. Thus, he contends, venue was not proper in Columbia County.
We do not read Delgado or the above cases as precluding the state from pursuing a burglary conviction under both the "unlawful entry" and "remaining in" theories when the facts and the allegations of the offense support both methods of commission.
The information charged appellant as follows:
CHRISTOPHER BRYANT MOSLEY on the 11TH day of MARCH, 1998, in COLUMBIA County, Florida, did unlawfully enter or remain in a CONVEYANCE, to wit: the CAR, owned by or in the possession of JAMES JONES, with intent to commit therein the offense of THEFT . . . .
"Theft" is defined as knowingly obtaining or using, or endeavoring to obtain or use, the property of another with the intent to temporarily or permanently deprive the other person of the right to or benefit from the property, or to appropriate the property to his or her own use. § 812.014(1), Fla. Stat. (1997).
When appellant entered the car without permission while it was parked at a service station in Volusia County, one can infer from the fact that he drove the vehicle away that he had the requisite intent to steal it, particularly in view of evidence showing that he failed to stop while being chased. Thus, there is no doubt that the amended information charged and the evidence supported burglary in Volusia County.
The question remains, however, whether the amended information also charged and the evidence supported burglary in Columbia County. We conclude that they did. As for unlawful entry, every time appellant re-entered the car in Columbia County, he did so without the owner's permission, hence unlawfully. His intent to commit theft, i.e., to temporarily or permanently deprive the owner of the use of or benefit from it or to appropriate the car for his own use, can be inferred from the fact that he drove it in a county distant from the county where he obtained the car. Thus, the information and evidence support a conviction for burglary of the conveyance under the "unlawful entry" theory.
The information and evidence likewise support a conviction under the "remaining in" theory under Delgado in that appellant remained in possession of and was actually inside the car surreptitiously, i.e., secretly as to the vehicle's owner. His intent to temporarily or permanently deprive Jones of the use of or benefit from the car and to appropriate the vehicle for his own use can likewise be inferred from the fact that appellant possessed the car and was remaining in it or using it nearly two months after he stole it.
"Surreptitious" means "done, made, or acquired by stealth," or "acting or doing something clandestinely." Merriam-Webster's Collegiate Dictionary 1187 (10th ed. 1998).
Because the information and evidence support a conviction for burglary of a conveyance under both the "unlawful entry" and the "remaining in" theories in Columbia County, venue was proper in Columbia County. We note that the Fifth District reached the same result in similar circumstances in State v. Stephens, 608 So.2d 905 (Fla. 5th DCA 1992) (on reh'g). In that case, the defendant stole a vehicle in Volusia County and attempted to evade the police and was eventually stopped, following a high-speed chase, in Seminole County. Like appellant here, Stephens argued that because he had unlawfully entered the car in Volusia County, the "unlawful entry" method, as opposed to the "remaining in" theory, applied, and in that he had unlawfully entered the car only in Volusia County, venue was not proper in Seminole County. In concluding that venue was proper in Seminole County, the court found that the "remaining in" element is a continuing act and that Stephens remained in the car with the intent to steal it and evade the police while he was also in Seminole County. We find nothing in Delgado or its progeny that overrulesStephens on this point.
We likewise affirm appellant's issue regarding the giving of the standard burglary instruction. Because the information charged and the evidence supported burglary under both theories of commission, it was not error to include both theories in the jury charge.
AFFIRMED.
ERVIN and VAN NORTWICK, JJ., CONCUR. BARFIELD, J., DISSENTS WITH OPINION.
The logic of endless, recurring burglaries and thefts of the same vehicle by the same perpetrator from the first unlawful entry until caught escapes me. I must respectfully dissent.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.