Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Anderson v. Secretary, Florida Department of Corrections

United States District Court, N.D. Florida, Gainesville Division

January 23, 2018

DEMETRIUS J ANDERSON, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING 28 U.S.C. § 2254 PETITION

         This cause comes on for consideration upon the Magistrate Judge's Report and Recommendation. (ECF No. 27). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). Plaintiff has filed objections at ECF No. 35. I have made a de novo review based on those objections.

         Having considered the Report and Recommendation, and the timely filed objections, I have determined that the Report and Recommendation should be adopted. First, the Court agrees with the Magistrate Judge that under Florida law, proving burglary with a battery only requires that the defendant have the intent to commit any offense at the time he enters or remains in a dwelling without permission; it is not required that the offense intended at the time of entry or remaining in be the actual battery which later resulted.

         Also, the Court agrees that the jury could have reasonably found that petitioner committed burglary under either the entry or remaining-in-without-permission theories. First, evidence existed to allow the jury to conclude that petitioner did not have permission to enter the apartment because (1) petitioner was not on any lease or bill regarding the apartment, (2) he was only there infrequently, (3) he knew that Ms. Bell had terminated the relationship, (4) Ms. Bell had asked for her key back, (5) Ms. Bell had returned all of his things to his father's house, and (6) petitioner broke down the front door when he got there. Also, the jury could have found he had the intent to commit various offenses, such as battery, assault or criminal mischief, at the time he entered the front door of the apartment from the following evidence: (1) the threatening voicemail where he used the term that she had "better" pick up her phone and promised to "act like a retard" once he came over if she did not; (2) he broke down the front door when he got there; (3) he angrily pounded on the bedroom door and eventually broke it down, before he was aware that another man was there; and (4) that he threw a dresser over and attempted to get at Ms. Bell when he was in the bedroom.

         Second, the jury could have found that even if petitioner had implicit permission to enter the apartment because of the on-again-off-again nature of the relationship with Ms. Bell, the fact that he had had some possessions at her apartment, and his possession of a key, that permission had been withdrawn and petitioner remained with the intent to commit various offenses, such as battery, assault or criminal mischief. The jury could rely on the following evidence to find that the permission was withdrawn and that petitioner knew it: (1) the front door was partly barricaded with furniture the same night he had left a threatening voicemail; (2) the bedroom door was locked; and (3) Ms. Bell and Mr. Green repeatedly told him he did not belong there and that he needed to leave. Also, the jury could also conclude that he had the intent to commit various offenses at the time he remained after permission was withdrawn because of the following evidence: (1) he broke down the bedroom door immediately after failing to leave when told to do so by Ms. Bell; and (2) he threw furniture, battered Mr. Green and attempted to get at Ms. Bell immediately after entering the bedroom. Thus, it was not error to instruct the jury on both theories and evidence existed supporting either theory.

         His second ground is closely related to his first. He argues that all of the state's evidence pointed only to a theory that he entered the apartment with the intent to commit an offense, and not to a remaining-in theory. Therefore, it was error for the judge to instruct that they could convict petitioner under either theory. He bases this argument on a state case, Delgado v. State, 776 So.2d 233 (Fla. 2000). In 2000, when Delgado was decided, the burglary statute defined burglary as follows:

“Burglary” means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

Fla. Stat. § 810.02 (2000)(repealed 2001). Thus, in 2000, the statute did not expressly specify whether the “remaining in” had to be surreptitious or after a withdrawal of consent.

         However, the Florida Supreme Court in Delgado held that such remaining-in must be surreptitious rather than after an implicit withdrawal of consent. The Court first reasoned that “a person would not ordinarily tolerate another person remaining in the premises and committing a crime” and, therefore, when an invitee to a home suddenly begins committing a crime, the host's consent would implicitly be immediately withdrawn. Delgado v. State, 776 So.2d 233, 238 (Fla. 2000). The Delgado Court was thus concerned that “any crime, including misdemeanors, committed on another person's premises would become a burglary if the owner of the premises becomes aware that the suspect is committing the crime.” Id. at 239. To avoid this “absurd result, ” the Court held that a person who originally entered the premises with the consent of the host could only be guilty of burglary for remaining in the property if the person did so surreptitiously. Id.

         The Court further concluded that one could not tell from the jury verdict in Delgado which theory - initial entry or remaining in - the jury relied upon in finding guilt. Since the Delgado Court had found that the remaining-in theory in that case was legally invalid, the Court could therefore not discern whether the jury had found guilt based on a legally invalid theory. Therefore, the Court vacated the conviction and remanded the case for retrial. Id.

         However, in 2001, the legislature revised Fla. Stat. § 810.02 with the express intent to undo Delgado:

The Legislature finds that the case of Delgado v. State, Slip Opinion No. SC88638 (Fla. 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.

         Legislative Findings, 2001 Fla. Sess. Law Serv. Ch. 2001-58 (H.B. 953) (WEST). The legislature revised § 810.02 to the following, which was in effect at the time of the instant offense:

(b) For offenses committed after July 1, 2001, “burglary” means:
1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter; or 2. Notwithstanding a licensed or ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.