Valentine v. State, 5D00-1048.
| Decision Date | 05 January 2001 |
| Docket Number | No. 5D00-1048.,5D00-1048. |
| Citation | 774 So.2d 934 |
| Parties | Ramon VALENTINE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
Ramon L. Valentine ["Valentine"] appeals his convictions for burglary of a conveyance with an assault or battery, battery and criminal mischief. The charges arose out of an incident in which Valentine broke into a vehicle in which his former girlfriend was sitting and ultimately assaulted her.
The trial record establishes the following facts. Valentine met his former girlfriend, Wendy Sussman, when she was five months pregnant and dating another man named Victor. Sussman phoned Valentine when she broke up with her boyfriend and they began to date. While they were dating, Valentine bought a van for Sussman's use and things for her baby.
Valentine and Sussman began fighting after the baby was born on November 23, 1998. They were no longer together as of December 23, 1998, but were thinking of getting back together. Valentine phoned Sussman and told her he wanted to see her. She agreed, but made him promise he would never drink again. She told him that she may come by the place he was living to make sure he was not drinking.
Later that day, Sussman's friend, Johanny Rosa, came to see her in her 1994 Plymouth Sundance. Victor was also present. Sussman asked Johanny to take her by the motel where Valentine was staying. They found Valentine at the pool area of the motel. Sussman got out of the vehicle to talk to Valentine, but immediately smelled alcohol on him. When she told him she did not want to be around him, he got angry, grabbed her to prevent her from getting back into the car, and tried to kiss her. Sussman pulled away and got back into the car. Victor, who was sitting in the front passenger seat, got out to talk to Valentine. Valentine then got into the car and reached back to grab a camera that he said he was taking back. Sussman asked Valentine to let her keep it since there were pictures of her son in the camera, so Valentine threw it in her direction. Victor pulled Valentine out of the car, and Sussman shut the door and locked it. The front passenger window was halfway open so Valentine reached in, unlocked the door, and got into the car again. He appeared very angry and extremely drunk. He reached back to grab Sussman and she pushed him away. He then grabbed Sussman's neck with his left hand and pinned her up against the back seat and slapped her with his right hand.
At trial, the jury was instructed without objection as follows:
Following deliberations, the jury found Valentine guilty as charged. The court adjudicated Valentine guilty and sentenced him to 52 weeks in the county jail on each of the misdemeanor convictions, to run concurrently. He was sentenced to life for the burglary.
Valentine makes two arguments on appeal with respect to the instructions on burglary with an assault. He first argues that the trial court committed fundamental error when it instructed the jury that in order to find him guilty of burglary of a conveyance with an assault or battery, the jury had to find that at "the time of entering or remaining in the conveyance, Ramon L. Valentine had a fully formed conscious intent to commit the offense of burglary with an assault or battery in that conveyance." He maintains that this instruction is fundamentally flawed, since it instructs the jury that Valentine had to enter the vehicle with the intent to commit a "burglary" rather than with the intent to commit some distinct, underlying offense.
This issue is properly conceded by the State. A number of courts have recognized that it is fundamental error to instruct the jury that a defendant may be found guilty of burglary if the jury finds that the defendant entered a structure or conveyance with the intent to commit a "burglary," rather than with the intent to commit some distinct, underlying offense. See, e.g., Lawrence v. State, 746 So.2d 1252 (Fla. 5th DCA 1999)
.1 Such an instruction is a circular instruction which misstates the elements of the offense. The error in the oral instructions was discovered at trial, and correct written instructions were given to the jury. However, the correction was never brought to the jury's attention.
Cf. Bernhardt v. State, 741 So.2d 1230 (Fla. 2d DCA 1999). It cannot be assumed that the jury noticed the change in the instructions and disregarded the erroneous instruction.
Valentine also contends that the trial court erroneously instructed the jury on the offense of burglary of a conveyance with an assault or battery, contrary to Delgado v. State, 776 So.2d 233 (Fla.2000). In Delgado, which was originally decided one month before this case went to trial,2 the Florida Supreme Court interpreted the "remaining in" language used in Florida's burglary statute to permit a conviction for burglary for remaining in a conveyance or structure only when a defendant "surreptitiously" remained in a structure or conveyance. The court reasoned that "[i]n the context of an occupied dwelling, burglary was not intended to cover the situation where an invited guest turns criminal or violent." Id. The court concluded that offenses committed after a defendant had lawfully gained entry to premises, but had not surreptitiously remained on the premises, should not automatically be converted into a burglary based on a legal presumption that consent to enter was withdrawn when the defendant committed the illegal act.
The instruction that was given in this case, which appears to be the standard instruction, appears incomplete in light of Delgado. The jury was instructed that:
This instruction suggests to the jury that it could convict Valentine if it found that he formed the requisite intent while he remained in the vehicle. However, because this is not a case where the facts could support a "surreptitious remaining," Valentine could not be convicted of burglary unless he had the requisite intent when he entered the vehicle. Accord Bledsoe v. State, 764 So.2d 927 (Fla. 2d DCA 2000)
(). In light of these errors in the...
To continue reading
Request your trial
-
Foster v. State
...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 no......
-
Floyd v. State
... ... Jury Instruction: Burglary ... Floyd asserts that he is entitled to relief under Valentine v. State, 774 So.2d 934 (Fla. 5th DCA 2001), review dismissed, 790 So.2d 1111 (Fla.2001). On this point we agree, noting that in Floyd's case the ... ...
-
Dolan v. State
...Div.1997)); Pennsylvania (See Commonwealth v. Magnum, 439 Pa.Super. 616, 654 A.2d 1146, 1147 (1995)); Florida (See Valentine v. State, 774 So.2d 934, 937 (Fla.App.Ct.2001)); Texas (See Linder v. State, 828 S.W.2d 290, 294 (Tex.App.Ct.2001) ("To prove intent to commit a felony or theft in a ......
-
Sonia O. Del Risco Polls v. State
...constituted fundamental error even though a correct written copy of the instructions was furnished to the jury); Valentine v. State, 774 So.2d 934, 936–37 (Fla. 5th DCA 2001) (holding that it cannot be assumed that the jury disregarded the erroneous oral instruction even though correct writ......