Senate Bill sb2856c1

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    Florida Senate - 2004                           CS for SB 2856

    By the Committee on Criminal Justice; and Senator Smith





    307-2445-04

  1                      A bill to be entitled

  2         An act relating to burglary; amending s.

  3         810.015, F.S.; providing legislative findings

  4         with respect to specified court decisions

  5         concerning the offense of burglary; providing

  6         special rules of statutory construction

  7         applicable to the offense of burglary;

  8         providing for retroactive operation; providing

  9         an effective date.

10  

11  Be It Enacted by the Legislature of the State of Florida:

12  

13         Section 1.  Section 810.015, Florida Statutes, is

14  amended to read:

15         810.015  Legislative findings and intent; burglary.--

16         (1)  The Legislature finds that the case of Delgado v.

17  State, 776 So. 2d 233 Slip Opinion No. SC88638 (Fla. 2000) was

18  decided contrary to legislative intent and the case law of

19  this state relating to burglary prior to Delgado v. State. The

20  Legislature finds that in order for a burglary to occur, it is

21  not necessary for the licensed or invited person to remain in

22  the dwelling, structure, or conveyance surreptitiously.

23         (2)  It is the intent of the Legislature that the

24  holding in Delgado v. State, 776 So. 2d 233 (Fla. 2000) Slip

25  Opinion No. SC88638 be nullified. It is further the intent of

26  the Legislature that s. 810.02(1)(a) be construed in

27  conformity with Raleigh v. State, 705 So. 2d 1324 (Fla. 1997);

28  Jimenez v. State, 703 So. 2d 437 (Fla. 1997); Robertson v.

29  State, 699 So. 2d 1343 (Fla. 1997); Routly v. State, 440 So.

30  2d 1257 (Fla. 1983); and Ray v. State, 522 So. 2d 963 (Fla.

31  

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    Florida Senate - 2004                           CS for SB 2856
    307-2445-04




 1  3rd DCA, 1988). This subsection shall operate retroactively to

 2  February 1, 2000.

 3         (3)  It is further the intent of the Legislature that

 4  consent remain an affirmative defense to burglary and that the

 5  lack of consent may be proven by circumstantial evidence.

 6         (4)  The Legislature finds that the cases of Floyd v.

 7  State, 850 So. 2d 383 (Fla. 2002); Fitzpatrick v. State, 859

 8  So. 2d 486 (Fla. 2002); and State v. Ruiz/State v. Braggs,

 9  Slip Opinion Nos. SC02-389/SC02-524 were decided contrary to

10  the legislative intent expressed in this section.  The

11  Legislature finds that these cases were decided in such a

12  manner as to give subsection (1) no effect.  The February 1,

13  2000 date in subsection (2) does not refer to an arbitrary

14  date relating to the date offenses were committed, but to a

15  date before which the law relating to burglary was untainted

16  by Delgado v. State, 776 So. 2d 233 (Fla. 2000).

17         (5)  The following special rules of construction apply

18  to this section:

19         (a)  All subsections of this section shall be construed

20  to give effect to subsection (1);

21         (b)  Notwithstanding s. 775.021(1), this section shall

22  be construed to give the interpretation of s. 810.02(1)(a)

23  announced in Delgado v. State, 776 So. 2d 233 (Fla. 2000), and

24  its progeny, no effect; and

25         (c)  If any provision of this section is susceptible to

26  differing constructions, it shall be construed in such manner

27  as to approximate the law relating to burglary as if Delgado

28  v. State, 776 So. 2d 233 (Fla. 2000) was never issued.

29         (6)  This section shall apply retroactively.

30         Section 2.  Section 810.02, Florida Statutes, reads:

31         810.02  Burglary.--

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    Florida Senate - 2004                           CS for SB 2856
    307-2445-04




 1         (1)(a)  For offenses committed on or before July 1,

 2  2001, "burglary" means entering or remaining in a dwelling, a

 3  structure, or a conveyance with the intent to commit an

 4  offense therein, unless the premises are at the time open to

 5  the public or the defendant is licensed or invited to enter or

 6  remain.

 7         (b)  For offenses committed after July 1, 2001,

 8  "burglary" means:

 9         1.  Entering a dwelling, a structure, or a conveyance

10  with the intent to commit an offense therein, unless the

11  premises are at the time open to the public or the defendant

12  is licensed or invited to enter; or

13         2.  Notwithstanding a licensed or invited entry,

14  remaining in a dwelling, structure, or conveyance:

15         a.  Surreptitiously, with the intent to commit an

16  offense therein;

17         b.  After permission to remain therein has been

18  withdrawn, with the intent to commit an offense therein; or

19         c.  To commit or attempt to commit a forcible felony,

20  as defined in s. 776.08.

21         (2)  Burglary is a felony of the first degree,

22  punishable by imprisonment for a term of years not exceeding

23  life imprisonment or as provided in s. 775.082, s. 775.083, or

24  s. 775.084, if, in the course of committing the offense, the

25  offender:

26         (a)  Makes an assault or battery upon any person; or

27         (b)  Is or becomes armed within the dwelling,

28  structure, or conveyance, with explosives or a dangerous

29  weapon; or

30         (c)  Enters an occupied or unoccupied dwelling or

31  structure, and:

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    Florida Senate - 2004                           CS for SB 2856
    307-2445-04




 1         1.  Uses a motor vehicle as an instrumentality, other

 2  than merely as a getaway vehicle, to assist in committing the

 3  offense, and thereby damages the dwelling or structure; or

 4         2.  Causes damage to the dwelling or structure, or to

 5  property within the dwelling or structure in excess of $1,000.

 6         (3)  Burglary is a felony of the second degree,

 7  punishable as provided in s. 775.082, s. 775.083, or s.

 8  775.084, if, in the course of committing the offense, the

 9  offender does not make an assault or battery and is not and

10  does not become armed with a dangerous weapon or explosive,

11  and the offender enters or remains in a:

12         (a)  Dwelling, and there is another person in the

13  dwelling at the time the offender enters or remains;

14         (b)  Dwelling, and there is not another person in the

15  dwelling at the time the offender enters or remains;

16         (c)  Structure, and there is another person in the

17  structure at the time the offender enters or remains; or

18         (d)  Conveyance, and there is another person in the

19  conveyance at the time the offender enters or remains.

20         (4)  Burglary is a felony of the third degree,

21  punishable as provided in s. 775.082, s. 775.083, or s.

22  775.084, if, in the course of committing the offense, the

23  offender does not make an assault or battery and is not and

24  does not become armed with a dangerous weapon or explosive,

25  and the offender enters or remains in a:

26         (a)  Structure, and there is not another person in the

27  structure at the time the offender enters or remains; or

28         (b)  Conveyance, and there is not another person in the

29  conveyance at the time the offender enters or remains.

30         Section 3.  This act shall take effect upon becoming a

31  law.

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    Florida Senate - 2004                           CS for SB 2856
    307-2445-04




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 2856

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