Cladd v. State

Decision Date30 April 1981
Docket NumberNo. 59113,59113
Citation398 So.2d 442
PartiesLeroy Franklin CLADD, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Jack O. Johnson, Public Defender, and Michael E. Raiden and Douglas A. Lockwood, Asst. Public Defenders, Bartow, for petitioner.

Jim Smith, Atty. Gen., Charles Corces, Jr., Asst. Atty. Gen., Tampa, and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for respondent.

ALDERMAN, Justice.

The sole issue presented for review is whether a husband who is physically but not legally separated from his wife, can be guilty of burglary when he enters premises, possessed only by the wife and in which he has no ownership or possessory interest, without the wife's consent and with intent to commit an offense therein. The District Court of Appeal, Second District, answered this question in the affirmative in the present case 1 and thereby created conflict with Vazquez v. State, 350 So.2d 1094 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1250 (Fla.1978). We hold that the Second District correctly decided that, under the particular facts of this case, the defendant could be guilty of burglary of his estranged wife's apartment, and we approve its decision.

The factual situation is narrow. The defendant and his wife had been separated for approximately six months, although there was no formal separation agreement or restraining order. He had no ownership or possessory interest in his wife's apartment and had at no time lived there. One morning, he broke through the locked door of her apartment with a crowbar, struck her, and attempted to throw her over the second floor stair railing. The next morning, he again attempted to break into her apartment but left when the police arrived.

The defendant was charged with burglary and attempted burglary. 2 Although conceding that his wife did not in fact consent to his entry into her apartment, he moved to dismiss the charges on the basis that since the victim was his wife, he was licensed or invited to enter her apartment as a matter of law. He then contended that, if he had the right to enter the apartment, he could not be guilty of burglary or attempted burglary. Relying upon Vazquez v. State, the trial court dismissed the charges. The State appealed, and the Second District, expressly disagreeing with the rationale of the Third District in Vazquez, reversed. The Second District held that although each spouse may have the legal right to the other's company, this does not include the right to break and enter the other's apartment with intent to commit an offense therein.

In Vazquez, the Third District held that since the husband in that case had the legal right to be with his wife, he could not be guilty of burglary when he broke into her apartment. Judge Haverfield, however, expressing the view later adopted by the Second District, dissented to the reversal of the burglary conviction. Pointing out that the victim's wife had the sole possessory rights to the apartment and that defendant had gained entrance only by actually breaking down the door and finding that the evidence was sufficient to sustain the burglary conviction, he concluded that the wife's apartment was not a marital abode and defendant no longer had a legal right to be there.

Later, in Wilson v. State, 359 So.2d 901 (Fla. 3d DCA), cert. denied, 365 So.2d 716 (Fla.1978), the Third District addressed the issue of whether entry into a father-in-law's home, where defendant's wife was temporarily residing, with intent to assault her constituted burglary. Distinguishing Vazquez on the basis that, in Wilson, the premises were possessed by the wife's father, the Third District affirmed defendant's burglary conviction and said that the husband's legal right to be with his wife did not establish consent where the wife was living in premises which were not solely possessed by her. The right of consortium alone was not sufficient to give the husband a right of entry into these premises. Yet, the legal right of consortium was the basis upon which the Third District premised its determination of implied consent in Vazquez.

We reject the defendant's contention that the marriage relationship and the right of consortium deriving therefrom preclude the State from ever establishing the nonconsensual entry requisite to the crime of burglary and we disapprove the Third District's contrary ruling in Vazquez. Since burglary is an invasion of the possessory property rights of another, where premises are in the sole possession of the wife, the husband can be guilty of burglary if he makes a nonconsensual entry into her premises with intent to commit an offense, the same as he can be guilty of larceny of his wife's separate property. In State v. Herndon, 158 Fla. 115, 27 So.2d 833 (1946), discussing a wife's separate property rights, we held that a husband could be charged with the larceny of his wife's separate property, and we explained:

In a society like ours, where the wife owns and holds property in her own right, where she can direct the use of her personal property as she pleases, where she can engage in business and pursue a career, it would be contrary to every principle of reason to hold that a husband could ad lib appropriate her property. If the common-law rule was of force, the husband could collect his wife's pay check, he could direct its use, he could appropriate her separate property and direct the course of her career or business if she has one. We think it has not only been abrogated by law, it has been abrogated by custom, the very thing out of which the common law was derived.

27 So.2d at 835. The defendant's consortium rights did not immunize him from burglary where he had no right to be on the premises possessed solely by his wife independent of an asserted right to consortium.

The defendant's estranged wife was in sole possession of the premises into which he broke with intent to assault her. The district court correctly reversed the trial court's dismissal of the burglary and attempted burglary charges.

Accordingly, we approve the district court's decision that burglary and attempted burglary convictions could stand.

It is so ordered.


BOYD, J., dissents with an opinion.

ENGLAND, J., dissents with an opinion, with which SUNDBERG, C. J., concurs.

BOYD, Justice, dissenting.

Under long-established principles of Anglo-American law, one of the essential incidents of the marital state is the right of spouses to the company and comfort of one another. This right is referred to as the right of consortium.

Consortium is so basic as an incident of marriage that it should not be undermined except by a clear legislative statement of the public policy of this state. The legislature should reconcile the matter of consortium rights with the elements of any crime, and should do so very carefully when dealing in the context of a crime carrying a possible sentence of life imprisonment. See § 810.02(2), Fla.Stat. (1977).

In Vazquez v. State, 350 So.2d 1094 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1250 (Fla.1978), the District Court of Appeal, Third District, construed the burglary statute we have before us in this case. The facts of the situation were almost identical to those we have here. The Vazquez case was the first construction of the burglary statute in the context of the situation of a spouse who forcibly enters the...

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21 cases
  • White v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 24, 1990
    ...12A C.J.S. Burglary § 38 (1990 Supp.) (footnote omitted). We agree with the holding of the Florida Supreme Court in Cladd v. State, 398 So.2d 442, 443-44 (Fla.1981): "The sole issue presented for review is whether a husband, who is physically but not legally separated from his wife, can be ......
  • Matthews v. Simpson
    • United States
    • U.S. District Court — Western District of Kentucky
    • March 17, 2009
    ...right to break into the home of the other with the intent to commit a crime. We adopt the position of the Florida court in Cladd v. State, Fla., 398 So.2d 442 (1981), of the Ohio court in State v. Herrin, 6 Ohio App.3d 68, 453 N.E.2d 1104 (1982), and of the Washington court in State v. Schn......
  • Com. v. Robbins
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 19, 1996
    ...a brick through a window and unlocking it. Id. at 161 n. 3, 556 A.2d 280. In this respect Parham resembles this case. In Cladd v. State, 398 So.2d 442, 443 (Fla.1981), the wife had been separated and living apart from her husband for six months, although there was no formal separation agree......
  • Folsom v. State, CR-93-1835
    • United States
    • Alabama Court of Criminal Appeals
    • July 28, 1995
    ..." 12A C.J.S. Burglary § 38 (1990 Supp.) (footnote omitted). "We agree with the holding of the Florida Supreme Court in Cladd v. State, 398 So.2d 442, 443-44 (Fla.1981): " 'The sole issue presented for review is whether a husband, who is physically but not legally separated from his wife, ca......
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