Florida/Georgia Personal Injury & Workers Compensation

...Jimenez does not make a substantial showing of a denial of a constitutional right. 6 The Florida legislature later found Delgado contrary to legislative intent and nullified its interpretation of the burglary statute. Fla. Stat. § 810.015....

...State, 705 So.2d 1324, 1329 (Fla.1997) (holding that whatever consent the victim might have given to defendant to remain in victim's home was withdrawn when defendant shot him several times and beat him viciously). [18] Ch. 2001-58, § 1, Laws of Fla. (creating § 810.015(1), Florida Statutes (2002))....

...Denial of Judgment of Acquittal Aguirre next alleges that the trial court erred in denying the motion for judgment of acquittal on the burglary charge. We conclude that the trial court did not abuse its discretion in denying a judgment of acquittal on the burglary charge. Section 810.015(3), Florida Statutes (2004), provides, "It is further the intent of the Legislature that consent remain an affirmative defense to burglary and that the lack of consent may be proven by circumstantial evidence." However, in a circumsta...

...Finally, Cheryl Williams had 129 stab wounds, many of which were defensive, and Carol Bareis had a wound in her chest so deep that it severed her heart. This circumstantial evidence, including Samantha Williams' testimony, clearly supports Aguirre's burglary conviction. See § 810.015(3), Fla....

...ity is waived for express contracts); White Constr. Co. v. State Dep't of Transp., 860 So.2d 1064, 1067 (Fla. 1st DCA 2003) (same). [10] An example of the Legislature's clearly expressed intention to override a prior judicial construction is seen in section 810.015, Florida Statutes (2004), in which the Legislature expressly stated: (1) The Legislature finds that the case of Delgado v....

...infra, even assuming Johnson has raised a proper actual innocence claim, his claim fails. 11 Shortly after Delgado was decided, the Florida legislature amended § 810.02 to make clear that an invited person entering a premises need not remain surreptitiously and adopted § 810.015, which expressly stated the legislature’s intent that Delgado’s holding be “nullified” and that the burglary statute, § 810.02, be “construed in conformity with . . . Ray.” Fla. Stat. Ann. § 810.015 (2001)....

...3, 2000), but was subsequently withdrawn when the revised opinion dated August 24, 2000, was released. See Delgado, 776 So.2d at 233. The revised opinion did not alter the February 3, 2000, Delgado opinion's new interpretation of the burglary statute. On May 25, 2001, the Governor approved House Bill 953, which created section 810.015(2), Florida Statutes (2001). See ch.2001-58, § 1, at 404, Laws of Fla. Section 810.015(2) states that "[i]t is the intent of the Legislature that the holding in Delgado v. State , Slip Opinion No. SC88638 be nullified." The statute further provides that the burglary statute should be construed in accord with this Court's precedent as established prior to Delgado. See § 810.015(2), Fla. Stat. In nullifying Delgado, the Legislature stated that section 810.015(2) "shall operate retroactively to February 1, 2000." This retroactivity provision was obviously included so that the original February 3, 2000, Delgado decision would be included in the nullification....

...to pending cases, which would include the appeal now before us. Id. at 660 (citation and footnotes omitted). [39] Thus, contrary to the majority's determination, see majority op. at 402, note 29, the retroactivity provision was not included to make section 810.015(2) only applicable to crimes occurring on or after February 1, 2000. [40] Another reference in the legislative staff analysis prepared for House Bill 953 supports the conclusion that the retroactivity language in section 810.015(2) was included to completely nullify the Delgado decision. In discussing what would occur to the defendant in Delgado after the enactment of section 810.015, the analysis states: Since this defendant has been granted a new trial based on a construction of the statute which would be expressly rejected by the Legislature, and it would be the intent of the Legislature that the law be returne...

...glary conviction, which is also in harmony with legislative intent, should be affirmed. I conclude that Delgado is not applicable to Floyd's conviction for armed burglary and that Floyd is not entitled to have that conviction reversed. The intent of section 810.015 is to validate all burglary convictions which were properly based on the law as established prior to Delgado....

...Floyd committed this crime on July 13, 1998, a time when the burglary statute had been defined so that Floyd's actions would have constituted burglary under Routly v. State, 440 So.2d 1257 (Fla.1983), and Ray v. State, 522 So.2d 963 (Fla. 3d DCA 1988), which are two of the cases listed in section 810.015(2), Florida Statutes....

...775.084, if, in the course of committing the offense, the offender: .... (b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon.... The trial judge also gave an instruction on armed burglary. [29] We are aware that in enacting section 810.015(2), Florida Statutes (2001), the Legislature stated its intent "that the holding in Delgado v. State ... be nullified." However, the Legislature also stated that subsection (2) of § 810.015 would "operate retroactively to February 1, 2000." The events in Floyd's case occurred well before February 1, 2000. Therefore, because the events in Floyd's case do not fall within the window established by the Legislature for retroactive application of section 810.015(2), we need not address the issue of the retroactive effect of the statute. See R.C. v. State, 793 So.2d 1078, 1079 n. 1 (Fla. 2d DCA 2001) (reversing defendant's conviction for burglary of a dwelling, based on Delgado v. State , and noting that the Legislature's language in section 810.015(2) regarding the nullification of Delgado did not apply because the defendant's actions took place prior to February 1, 2000)....

...[40] The majority states that Floyd is entitled to relief under Valentine v. State, 774 So.2d 934, 937 (Fla. 5th DCA 2001), review dismissed, 790 So.2d 1111 (Fla.2001). However, the majority fails to recognize that this Court dismissed review of Valentine on May 11, 2001, prior to the enactment of section 810.015....

...On rehearing in Delgado, this Court held that the Delgado interpretation of the burglary statute was not to be applied retroactively to convictions that had become final. Id. at 241. In the 2001 session of the Legislature, the Legislature addressed the Delgado construction of the burglary statute in a statement of intent: 810.015 Legislative findings and intent; burglary....

...3rd DCA 1988). This subsection shall operate retroactively to February 1, 2000. (3) It is further the intent of the Legislature that consent remain an affirmative defense to burglary and that the lack of consent may be proven by circumstantial evidence. § 810.015, Fla....

...y murder based on the burglary statute as construed by this Court prior to Delgado. Those sentences *494 are being served in conformity with a construction of the burglary statute which the Legislature has stated was as the Legislature intended. See § 810.015, Fla....

...We held that the State's theory of burglary, which formed the basis of a conviction on felony murder, was legally inadequate because the State had not shown that Delgado remained in the Rodriguezes' dwelling surreptitiously. Id. at 242, superseded by § 810.015, Fla....

...driguez: (1) prior violent felony, (2) murder committed during an enumerated felony (armed burglary), and (3) heinous, atrocious, or cruel (HAC). The trial court found no statutory mitigation, and some nonstatutory mitigation. See infra, note 7. [2] Section 810.015(1), Florida Statutes, states as follows: The Legislature finds that the case of Delgado v....

...to others found guilty of murder."). We disagree. The 2001 amendment to the burglary statute was intended to repudiate this Court's decision in Delgado v. State, 776 So.2d 233 (Fla.2000), and to clarify, not broaden, the definition of burglary. See § 810.015(1)(2), Fla....

...d to enter or remain." § 810.02, Fla. Stat. (2000). In Delgado, this Court limited the "remaining in" language to situations where the remaining in was done surreptitiously. 776 So.2d at 240 (Fla.2000). In response, the Legislature amended sections 810.015 and 810.02 to abrogate Delgado....

...Because the certified question posed by the Third District raises constitutional issues regarding separation of powers that we need not reach to resolve these cases, we rephrase the certified question as follows: WHETHER SECTION 1 OF CHAPTER 2001-58, LAWS OF FLORIDA, WHICH IS CODIFIED AT SECTION 810.015, FLORIDA STATUTES (2002), APPLIES TO CONDUCT THAT OCCURRED PRIOR TO FEBRUARY 1, 2000....

...ously." [2] After Delgado and during the 2001 legislative session, the Florida Legislature amended the burglary statute. See Ch.2001-58, Laws of Fla. Specifically, section 1 of chapter 2001-58, which is the subject of the certified question, created section 810.015, Florida Statutes (2002): 810.015 Legislative findings and intent; burglary.— (1) The Legislature finds that the case of Delgado v....

...Specifically, the Third District addressed "whether the effect of section 1 of chapter 2001-58[was] to overturn Delgado." 815 So.2d at 659. After determining that the statute applied to Braggs' case, the Third District concluded that section 1 of chapter 2001-58 (now section 810.015, Florida Statutes (2002)) was "simply a statement of intent" and "expresse[d] the view of the Legislature that Delgado was wrongly decided and should be nullified." Id....

...Because the Third District's decision in Ruiz was based on Braggs, the Ruiz opinion does not contain any analysis of chapter 2001-58. See id. at 468-69. ANALYSIS The threshold issue decided by the Third District is whether the expression of legislative intent to nullify Delgado retroactive to February 1, 2000, contained in section 810.015(2) applies to Braggs and Ruiz, whose conduct occurred in 1995 and 1998, respectively. The Third District determined that section 810.015(2) was intended to apply to cases such as Braggs' and Ruiz's, which were in the "pipeline" [6] at the time Delgado was decided, based on the legislative history of chapter 2001-58. See Braggs, 815 So.2d at 660. We conclude that the Third District erred in going beyond the plain meaning of section 810.015(2), which, as the Third District acknowledged, by its own terms does not apply to those defendants whose conduct occurred prior to February 1, 2000....

...hich is free from ambiguity." Fla. Dep't of Revenue v. Fla. Mun. Power Agency, 789 So.2d 320, 323 (Fla. 2001) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla.1992)). In this case, the Legislature specified that section 810.015(2), which states an intent to nullify Delgado, was to apply retroactively to February 1, 2000. We recently explained in Floyd v. State, 850 So.2d 383 (Fla.2002), that the express language of section 810.015(2) makes it inapplicable to cases where the conduct occurred before February 1, 2000: *1210 We are aware that in enacting section 810.015(2), Florida Statutes (2001), the Legislature stated its intent "that the holding in Delgado ... be nullified." However, the Legislature also stated that subsection (2) of § 810.015 would "operate retroactively to February 1, 2000." The events in Floyd's case occurred well before February 1, 2000. Therefore, because the events in Floyd's case do not fall within the window established by the Legislature for retroactive application of section 810.015(2), we need not address the issue of the retroactive effect of the statute. See R.C. v. State, 793 So.2d 1078, 1079 n. 1 (Fla. 2d DCA 2001) (reversing defendant's conviction for burglary of a dwelling, based on Delgado v. State , and noting that the Legislature's language in section 810.015(2) regarding the nullification of Delgado did not apply because the defendant's actions took place prior to February 1, 2000). Id. at 402 n. 29 (emphasis supplied). Based on our decision in Floyd, we conclude that section 810.015(2) is inapplicable to Braggs' and Ruiz's cases because their conduct occurred before February 1, 2000....

...which were affirmed by the Third District. See Ruiz, 841 So.2d at 469; Braggs, 815 So.2d at 661. [9] CONCLUSION Based on the forgoing, we answer the rephrased question in the negative and hold that section 1 of chapter 2001-58, which is codified at section 810.015, Florida Statutes (2002), is not applicable to conduct that occurred prior to February 1, 2000....

...Because this defendant's appeal was pending at the time Delgado was announced, defendant is entitled to the benefit of the Delgado decision. [1] The 2001 legislature disagreed with the Delgado decision and issued a statement of intent in chapter 2001-58, Laws of Florida, as follows: Section 1. Section 810.015, Florida Statutes, is created to read: 810.015 Legislative findings and intent; burglary....

...committed burglary of a dwelling, but direct that R.C.'s adjudication of delinquency be upheld on the basis of the trespass. Finally, we remand for a new disposition hearing in accord with the finding of trespass. Reversed and remanded. NORTHCUTT, A.C.J., and SILBERMAN, J., Concur. NOTES [1] Section 810.015, Florida Statutes (2001), nullifies Delgado v....

...As to all other issues raised, we also affirm. GUNTHER and KLEIN, JJ., concur. NOTES [1] In Delgado v. State, 776 So.2d 233 (Fla. 2000), the supreme court held that the "remaining in" language applied only in situations where the remaining was done surreptitiously. In section 810.015, Florida Statutes (2001), the legislature expressed its intent that Delgado be nullified....

...Appellant was not located and apprehended by police until December 23, 1992, more than two years after the murders. Delgado v. State, 776 So. 2d 233, 234–35 (Fla. 2000) (per curiam) (“Delgado I”), superseded by statute, Fla. Stat. § 810.015. 1 As clarified in Delgado’s second direct appeal, Delgado v....

...remain in the relevant structure is a complete defense. See State v. Hicks, 421 So. 2d 510, 510–11 (Fla. 1982); Ray v. State, 522 So. 2d 963, 964 n.3 (Fla. 3d Dist. Ct. App. 1988), overruled on other grounds by Delgado I, 776 So. 2d at 240–41, superseded by statute, Fla. Stat. § 810.015 (reinstating Ray). Before Delgado’s first direct appeal, Florida courts interpreted the burglary statute’s “remaining in” language broadly....

...me by "trick or fraud." AFFIRMED. POLEN, C.J., and WARNER, J., concur. NOTES [1] During the pendency of this appeal, the Legislature expressly nullified Delgado. See 2001 Fla. Sess. Law Serv. ch. 2001-58 (H.B. 953)(West)(to be codified at Fla. Stat. § 810.015)....

...Therefore, we reverse the conviction and sentence on the burglary charge and remand for a new trial. The remaining convictions are affirmed without further discussion. Robinson defended against the burglary charge on the ground that he entered the house as Wechman's invitee. See § 810.015(3), Fla....

...After considering the common-law roots and evolution of the crime of burglary, the court concluded that the "remaining in" burglary theory applied "only in situations where the remaining in was done surreptitiously." Id. at 240. Although the Florida Legislature subsequently 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 legislature cannot nullify a judicial decision retroactively, and because the...

...lay shards of glass. Extending the argument advanced by Mackey, the officer would not have reasonable suspicion to justify an investigatory stop until the officer first determined that the individual did not have consent to enter the home. See e.g., § 810.015(3) Fla....

...vidence was then insufficient to establish burglary. Delgado, 776 So.2d 233. We reverse the conviction for burglary, affirm the remaining convictions, and remand for proceedings consistent with this opinion. NOTES [1] We are aware of the creation of section 810.015, Florida Statutes (2001) by which the legislature has expressed its disagreement with Delgado....

...On direct appeal of his burglary conviction, Curtis Foster contends that Delgado v. State, 776 So.2d 233 (Fla.2000), requires reversal. Even though the Legislature has since amended section 810.02(1), Florida Statutes (1999), we agree that Chapter 2001-58, section 1, Laws of Florida (codified at section 810.015, Fla....

...4th DCA 2001); Valentine, 774 So.2d at 937; Mosely, 682 So.2d at 606; Arline, 550 So.2d at 1181. IV. In the legislative session after Delgado was decided, the Legislature enacted Chapter 2001-58, section 1, at 404, Laws of Florida, which took effect May 25, 2001. Chapter 2001-58, section 1, provides: 810.015 Legislative findings and intent; burglary.— (1) The Legislature finds that the case of Delgado v....

...Although I agree with the majority's decision to affirm, I see no need to apply the extended analysis to the issue as undertaken by the majority. After the publication on August 24, 2000, of the final Delgado opinion ( Delgado v. State, 776 So.2d 233 (Fla.2000)), the Florida Legislature enacted section 810.015, Florida Statutes (2001), which includes the legislative finding that the supreme court in Delgado had interpreted the burglary statute, section 810.021(1), Florida Statutes (1989), in a manner contrary to legislative intent and therefore the Delgado holding should be nullified. Ordinarily an amendment which does not create a substantive change in the law, but serves only to clarify the legislative intent, as reflected in the opinions preceding Delgado that were recited in section 810.015(2), does not violate the constitutional prohibition against ex post facto laws....

...5th DCA 2001), the supreme court concluded that the giving of the instruction was fundamental error, requiring reversal of the conviction for armed burglary. Floyd, 850 So.2d at 401-02. The offense in Floyd occurred in 1998, well before February 1, 2000, the date the legislature, in section 810.015(2), Florida Statutes (2001), declared the supreme court's decision in Delgado v. State, 776 So.2d 233 (Fla.2000), to be contrary to legislative intent and therefore null. In deciding the case as it had, the supreme court added the following important footnote to its opinion: We are aware that in enacting section 810.015(2), Florida Statutes (2001), the Legislature stated its intent "that the holding in Delgado v. State ... be nullified." However, the Legislature also stated that subsection (2) of § 810.015 would "operate retroactively to February 1, 2000." The events in Floyd's case occurred well before February 1, 2000. Therefore, because the events in Floyd's case do not fall within the window established by the Legislature for retroactive application of section 810.015(2), we need not address the issue of the retroactive effect of the statute. See R.C. v. State, 793 So.2d 1078, 1079 n. 1 (Fla. 2d DCA 2001) (reversing defendant's conviction for burglary of a dwelling, based on *444 Delgado v. State , and noting that the Legislature's language in section 810.015(2) regarding the nullification of Delgado did not apply because the defendant's actions took place prior to February 1, 2000)....

...I question whether the decision Judges Benton and Barfield rely on, Fitzpatrick v. State, 859 So.2d 486 (Fla.2003), requires reversal and remand. In Fitzpatrick, the crime occurred on February 8, 1980, also before the effective date of the amendment to section 810.015(2)....

...This nullification, however, [purportedly] operates retroactively to February 1, 2000. Because the events herein occurred prior to that date, we do not discuss this enactment." (citations omitted)); R.C. v. State, 793 So.2d 1078, 1079 n. 1 (Fla. 2d DCA 2001) ("Section 810.015, Florida Statutes (2001), nullifies Delgado v....

...Although that nullification [purportedly] operates retroactively, the legislature limited that retroactivity to February 1, 2000. The instant events took place prior thereto."); Ruiz v. State, 789 So.2d 1108, 1108 n. 1 (Fla. 3d DCA 2001) ("We are aware of the creation of section 810.015, Florida Statutes (2001) expressing the legislature's finding that Delgado v....

...As we pointed out, "[p]erhaps the Florida Supreme Court will recede from Delgado; perhaps not. But at this writing, the court has not done so and we are obliged to follow Delgado." Braggs, 815 So.2d at 661. The fact that the Supreme Court has not yet receded from Delgado (and that Delgado survived the enactment of section 810.015) was recently confirmed by Fitzpatrick v....

...We have individuals serving sentences for valid convictions of burglary... based on the burglary statute as construed by this Court prior to Delgado. Those sentences are being served in conformity with a construction of the burglary statute which the Legislature has stated was as the Legislature intended. See § 810.015, Fla....

...In Delgado, the Court held that the "remaining in" language of the burglary statute was only applicable when there was consensual entry by the accused and the "remaining in" was done surreptitiously. Id. at 240-41. In amending the burglary statute, the Legislature stated, in pertinent part, as follows: 810.015....

...2000), was decided contrary to legislative intent and the case law of this state relating to burglary prior to Delgado v. State . The Legislature finds that in order for a burglary to occur, it is not necessary for the licensed or invited person to remain in the dwelling, structure, or conveyance surreptitiously. § 810.015 Fla....

...The Florida Legislature has specifically stated that consent is an affirmative defense to the crime of burglary, and “the lack of consent may be proven by circumstantial evidence.” Aguirre-Jarquin v. State, 9 - 40 - So. 3d 593, 605 (Fla. 2009) (quoting § 810.015(3), Fla....

...y.” Id. at 236 . In direct response to this decision, the Florida Legislature amended the definition of "burglary” to provide express exceptions to the invitee and licensee affirmative defenses. See § S10.02(l)(b)2., Fla. Stat. (2008); see also § 810.015(l)-(6), Fla....

...He failed to allege the availability of the witnesses and requested leave to amend, pursuant to Nelson v. State, 875 So.2d 579 (Fla.2004). The trial court denied the motion, concluding that availability did not cure the other legal insufficiency of the motion. In particular, the trial court noted that under section 810.015, Florida Statutes (2002), even if appellant had consent for the initial entry, such consent was withdrawn once he committed the act of battery....

...ase because Delgado issued three months prior to Appellant's trial. Moreover, Appellant's offense was committed on December 25, 1999, which was prior to the retroactivity date included in the statute that superseded the supreme court's decision. See § 810.015(2), Fla....

...Therefore, as in Couzo, Miller, and Johnekins, here, the inclusion of the "remaining in" part of the burglary instruction was mere surplusage and not fundamental error. HAZOURI and MAY, JJ., concur. NOTES [1] The 2001 legislature amended the burglary statute with the intent of overturning Delgado by the enactment of section 810.015, Fla....

...defendant is licensed or invited to enter.” See § 810.02(1)(b), Fla. Stat. (2015). Licensed or invited entry into the dwelling or structure is an affirmative defense to a burglary charge. See State v. Hicks, 421 So. 2d 510, 510–11 (Fla. 1982); see also § 810.015, Fla....

inadequate), superseded on other grounds by statute, § 810.015, Fla. Stat. (2001); Mackerley v. State, 777 So

...466, 116 L.Ed. 2d 371 (1991), the Supreme Court clarified that the Yates rule did not apply when the alternative ground was legally proper but failed because of insufficient evidence. See 2 After Delgado was decided, the Florida Legislature passed section 810.015, Florida Statutes (2001), which amended the burglary statute....

...to raise a Delgado issue on appeal rendered her ineffective. See R.C. v. State, 793 So.2d 1078, 1079, n. 1 (Fla. 2d DCA 2001)(reversing defendant's conviction for burglary of a dwelling based on Delgado and noting that the Legislature's language in section 810.015(2) nullifying Delgado did not apply *282 because the defendant's actions took place prior to February 1, 2000)....

...NOTES [1] The court decided Delgado on August 24, 2000. At the time of Petitioner's appeal, the use of "remaining in" language in a jury instruction on burglary was considered improper under Delgado. Although the Legislature would later nullify Delgado by enacting section 810.015(2), Florida Statutes (2001), the legislative nullification was retroactive only to February 1, 2000. See Floyd v. State, 850 So.2d 383, 402, n. 29 (Fla.2002). The events in Petitioner's case occurred on November 9, 1999, before the retroactive date of section 810.015(2)....

...2000), the supreme court held that the “remaining in” language of the burglary statute applied only to situations where there was consensual entry and the “remaining in” is done surreptitiously. Id. at 240 . After the supreme court rendered its decision in Delgado , the legislature passed section 810.015, Florida Statutes (2001), in which it stated that the decision in Delgado was contrary to the legislative intent and the decision and its progeny were nullified....

...The Florida Legislature expressly nullified the holding in Delgado . The legislature stated that in order for a burglary to occur, it is not necessary for the licensee or invitee to remain in the dwelling, structure, or conveyance surreptitiously. See § 810.015(1), Fla. Stat. (2002). While consensual entry remains an affirmative defense to burglary, the lack of consent may be established by circumstantial evidence. See § 810.015(3), Fla....

...Skel-lie’s conviction was on appeal at the time the final Delgado opinion was issued, and therefore was not final. See Skellie v. State, 796 So.2d 1290 (Fla. 5th DCA 2001). However, the nullification of Delgado was stated by the legislature to apply retroactively to 1 February 2000. See § 810.015(2), Fla....

...The Florida Legislature has specifically stated that consent is an affirmative defense to the crime of burglary, and “the lack of consent may be proven by circumstantial evidence.” Aguirre-Jarquin v. State, 9 So. 3d 593, 605 (Fla. 2009) (quoting § 810.015(3), Fla....

...committed burglary of a dwelling, but direct that R.C.’s adjudication of delinquency be upheld on the basis of the trespass. Finally, we remand for a new disposition hearing in accord with the finding of trespass. Reversed and remanded. NORTHCUTT, A.C.J., and SILBERMAN, J., Concur. . Section 810.015, Florida Statutes (2001), nullifies Delgado v....

...2(1), Florida Statutes (1989), unless he or she does so surreptitiously. The state contends that the lower court erred in ordering a new trial, because the legislature nullified the holding of Delgado in chapter 2004-93, Laws of Florida, codified at section 810.015, Florida Statutes (2004)....

...Accord Fitzpatrick v. State, 859 So.2d 486 (Fla.2003); Floyd v. State, 850 So.2d 383 (Fla.2002). In the next session, however, the legislature enacted chapter 2004-93, Laws of *1200 Florida, effective May 21, 2004, codified at paragraphs (4) through (6) of section 810.015....