Foster v. State

• Decision Date: 12 June 2002
• Docket Number: No. 1D00-4334.,1D00-4334.
• Citation: 861 So.2d 434
• Parties: Curtis FOSTER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

861 So.2d 434

Curtis FOSTER, Appellant, v. STATE of Florida, Appellee.

No. 1D00-4334.

District Court of Appeal of Florida, First District.

June 12, 2002.

Order Granting Clarification December 24, 2003.

Nancy A. Daniels, Public Defender; M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Robert L. Martin, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.

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. Stat. (2001)), does not render Delgado inapplicable. See Art. X, § 9, Fla. Const. ("Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed."). We nevertheless affirm the conviction, because a recent decision of this court forbids reversal where the defense complains on appeal for the first time of "an alleged[ly] inaccurate definition of an element of a crime." Reed v. State, 783 So.2d 1192, 1197 (Fla. 1st DCA 2001), rev. granted (Fla. Oct. 16, 2001).

I.

Early on the morning of April 22, 2000, evidence at trial showed, Angela Maxwell was inside a locked building selling gasoline and other wares, dealing with customers through a window designed for that purpose. Some time after three o'clock the store lights went off, inside and outside. When she then tried to use the telephone, it was dead, so she opened the door and yelled to a group of men standing on a nearby corner. But they ignored her.

Again inside the locked store, she heard voices outside near an air conditioning unit. Soon a bamming noise and telltale movements of the air conditioner convinced her an effort was under way to push the unit into the store and gain entrance through the opening. Exclaiming that she was going to call the police, she left the store, closed the door behind her, got into her car, drove across the street to a pay phone, and dialed 911. As she was reporting the situation, pieces of brick were thrown at her from the left side of the store.

She then drove to the police station, which was less than three minutes away, and had discussions there before eventually returning to the store, where she noticed that the door was open, and, inside, that the cash drawer was open. Officer Tolen and Sergeant Elkins had arrived on the scene before her, and had seen Mr. Foster flee from the store, cash in hand. When he ignored their orders to stop, they ran him down and arrested him.

Ms. Maxwell conceded that she did not see who was trying to break into the store, but testified that she never gave Mr. Foster permission to enter the store. Mr. Foster testified that, seeing the store dark and the door open, he went in, partly out of curiosity and partly in order to buy cigarettes, only to find money on the floor, which he picked up and took with him as he made his hasty exit. He testified that he had no intention to commit any crime at the time he entered the store. He kept going when he heard someone yell, "Hold it," he testified, because he thought burglars, not law enforcement officers, were ordering him to stop.

In closing, the state argued that, even if the jury believed Mr. Foster's version of events, they should still find him guilty of burglary because he remained inside the structure after forming the intent to commit theft by taking money that was not his:

If the defendant entered into the structure and while in the structure while remaining in that structure formed the intent to commit a theft then that is a burglary.

He does not have to form the intent before he enters into the structure. Before he commits the entrance. It's enter or remain. Once he went into that structure he had no lawful authority to enter that structure while he was inside of that structure he formed the conscious intent to commit that theft while he remained in that structure.

The trial court gave the standard jury instructions on burglary, which defined the elements of the charged offense in the following words:

One, Curtis Foster entered or remained in a structure owned by or in possession of Baron Oil gas station. Two, Curtis Foster did not have the permission or consent of Baron Oil gas station or any one authorized to act for them to enter or remain in the structure at that time. And three, at the time of entering or remaining in the structure Curtis Foster had a fully formed conscious intent to commit the offense of theft while in that structure.

(Emphasis supplied.) See § 810.02(1), Fla. Stat. (1999); Fla. Std. Jury Instr. (Crim.) 195. These instructions did not require the jury to find that Mr. Foster formed the intent to commit theft either before entering or while surreptitiously remaining in the structure.

II.

The difference between "remaining" and "remaining surreptitiously" took on legal significance under the burglary statute with our supreme court's decision in Delgado. The supreme court held in Delgado that "the `remaining in' clause should be limited to the defendant who surreptitiously remains." 776 So.2d at 240; see Tinker v. State, 784 So.2d 1198, 1200 (Fla. 2d DCA 2001); Valentine v. State, 774 So.2d 934, 937 (Fla. 5th DCA 2001). Abandoning its earlier interpretation of the statute,¹ the supreme court concluded in Delgado that the Legislature had not intended to define burglary in a way that included cases where a defendant who did not intend to commit an offense upon entering a structure did not, having formed such an intent once inside, thereafter "remain in" the structure surreptitiously. The Delgado court held that a person does not "remain in" a structure for purposes of the burglary statute, section 810.02(1), Florida Statutes (1989), unless the person remains inside surreptitiously. See 776 So.2d at 240.

The final Delgado opinion superseded and was "substituted in lieu" of the original opinion in Delgado, which had come down on February 3, 2000, see 25 Fla. L. Weekly S79, announcing the change in law before the events which gave rise to the present case took place. Only on August 24, 2000, however, after the alleged burglary, did the final opinion, reported at 776 So.2d at 234 and 776 So.2d 233, come down. The final Delgado opinion addressed the question of retroactivity for the first time, saying: "This opinion will not ... apply retroactively to convictions that have become final."776 So.2d at 241 (emphasis supplied). As we understand Delgado itself to say, therefore, an offender whose conviction was final before August 24, 2000, does not have the benefit of Delgado's interpretation of the burglary statute, even if his offense occurred after February 3, 2000, when the initial Delgado decision came down.² In the present case, however, although the events which gave rise to the prosecution occurred before the final opinion and the mandate issued in Delgado, the conviction under review was not final until after August 24, 2000.

III.

Appellant argues that his burglary conviction should be reversed because the jury might have convicted him on the theory that he remained in the store, having decided to take the money, despite concluding that he did not remain in the store surreptitiously. A conviction that rests on alternative bases, one of which is legally inadequate, cannot be upheld, if a general verdict makes it impossible to say with certainty that the jury convicted under a theory that was legally adequate. See Mackerley v. State, 777 So.2d 969, 969 (Fla.2001) (holding error is not harmless, when the accused is convicted of first-degree murder on a general verdict after a trial in which premeditation and felony murder theories are espoused, if "the felony underlying the felony murder charge is based on a legally unsupportable theory"). Basic requirements of due process require this rule, which finds support in the due process clauses both of the Florida and of the federal constitutions. See U.S. Const. amend. V; Art. I, § 9, Fla. Const. See generally Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled in part on other grounds, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

Until Reed was decided, when a jury, instructed that it could convict for conduct that did not constitute an offense (or constituted some lesser offense), returned a general verdict, the conviction amounted to fundamental error, notwithstanding the existence of alternative, legitimate theories of guilt the evidence could support. See Mosely v. State, 682 So.2d 605, 607 (Fla. 1st DCA 1996); Arline v. State, 550 So.2d 1180, 1181 (Fla. 1st DCA 1989); see also Horn v. State, 677 So.2d 320, 323 (Fla. 1st DCA 1996) (holding enhancement on a general verdict for felony murder impermissible on account of possession of a firearm, because possession of a firearm was an essential element of one (but not all) of the predicate felonies the state relied on to prove felony murder).

The United States Supreme Court has held "the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected." Yates, 354 U.S. at 312, 77 S.Ct. 1064; see generally Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (explaining that reversal is not required under Yates so long as the evidence is sufficient under one alternative ground, if and only if each alternative ground is legally adequate); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Here the jury was instructed that Mr. Foster was guilty of burglary if he "remained in the structure... with the intent to commit an offense therein." The jury was not instructed that he...