Wilson v. State

Decision Date23 December 2019
Docket NumberNo. 1D18-535,1D18-535
Citation288 So.3d 108
Parties Brandon B. WILSON, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Andy Thomas, Public Defender, Steven L. Seliger and Jasmine Russell, Assistant Public Defenders, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief - Criminal Appeals, Tallahassee, for Appellee.

Per Curiam.

Brandon B. Wilson seeks review of the trial court's summary denial of his motion for postconviction relief. We affirm and write only to address Wilson's claim that defense counsel was ineffective for failing to object to a jury instruction on first-degree felony murder based on the predicate felony of burglary where the alleged burglary occurred in a parking garage open to the public. We conclude that summary denial of this claim was proper because Wilson did not demonstrate entitlement to relief under Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Wilson was indicted for first-degree premeditated murder. At trial, the State presented evidence that Wilson and two other men followed the victim from a nightclub into a parking garage with the intent to rob him of money. After a brief altercation, Wilson pulled a gun and fatally shot the victim twice before fleeing. Wilson's primary defense centered on the identity of the shooter, i.e., that he was not involved in the shooting.

The trial court instructed the jury that it could find Wilson guilty of first-degree murder on two alternative theories: (1) the killing was premeditated, or (2) the death was a consequence of Wilson's commission or attempted commission of burglary (felony murder). Under the felony murder theory, the court instructed that in order to prove the crime of burglary the State had to prove the following two elements beyond a reasonable doubt: (1) Wilson entered the parking garage with the permission or consent of the city that owned it; and (2) after entering the garage, Wilson "remained therein" with the intent to commit or attempt to commit a robbery. The court further instructed that to prove the crime of robbery, the State had to prove the following four elements beyond a reasonable doubt: (1) Wilson took or attempted to take money from the person or custody of the victim; (2) force, violence, assault, or putting in fear was used in the course of the taking; (3) the property taken was of some value; and (4) the taking was with the intent to permanently or temporarily deprive the victim of his right to the property or any benefit from it.

The jury returned a general verdict finding Wilson guilty of first-degree murder. The trial court adjudicated Wilson guilty and sentenced him to life imprisonment. On appeal, this court affirmed the conviction and sentence. Wilson v. State , 165 So. 3d 47 (Fla. 1st DCA 2015).

In his motion for postconviction relief, Wilson raised four claims of ineffective assistance counsel. In his first claim, he alleged that defense counsel was ineffective in failing to object when the trial court read an erroneous jury instruction on first-degree felony murder. Specifically, he asserted that he could not have committed the murder during a burglary because the location of the murder was a public parking garage that he was lawfully within at the time of the offense. Because it could not be determined whether the jury convicted him based on an invalid felony murder theory, he claimed that he was entitled to a new trial.

The trial court entered an order summarily denying Wilson's postconviction motion. In rejecting Wilson's first claim of ineffective assistance of counsel, the court found that (1) the Florida Legislature amended the burglary statute in 2001 to allow a conviction for burglary under circumstances similar to those in this case; and (2) defense counsel did object and argue at trial that Wilson could not have committed felony murder based on an allegation of burglary. This appeal followed.

In order to establish ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient, i.e., it fell outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance prejudiced the defense, i.e., there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694, 104 S.Ct. 2052. The test for prejudice under Strickland is very different from the test for prejudicial error on direct appeal because "once a conviction has been affirmed on direct appeal, ‘a presumption of finality and legality attaches to the conviction and sentence.’ " Sanders v. State , 946 So. 2d 953, 959 (Fla. 2006) (quoting Goodwin v. State , 751 So. 2d 537, 546 (Fla. 1999) ). Specifically, if the appellant demonstrates that the trial court committed error on direct appeal, the burden is on the State "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio , 491 So. 2d 1129, 1135 (Fla. 1986). However, in a postconviction proceeding, " Strickland places the burden on the defendant, not the State, to show a ‘reasonable probability’ that the result would have been different." Wong v. Belmontes , 558 U.S. 15, 27, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009).

We conclude as a matter of law that Wilson failed to establish entitlement to relief under the high burden imposed by Strickland . Accordingly, we affirm the summary denial of Wilson's postconviction claim.

AFFIRMED.

Wolf, J., concurs with opinion; Winokur, J., concurs with opinion* ; Jay, J., concurs with opinion.

Wolf, J., concurring.

I concur with the decision to affirm. I write separately to express disagreement with the viewpoint asserted in Judge Winokur's opinion that the 2001 amendment to the burglary statute effectively negated the "open to the public defense" to the charge of burglary. I would specifically note that Judge Winokur's assertion has not been adopted by a majority of the panel.

BURGLARY

Although the Legislature amended the burglary statute in 2001, no court has directly addressed whether the amendment had any effect on the "open to the public" defense.

Prior to 2001, Florida defined burglary as "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." § 810.02(1), Fla. Stat. (2000) (emphasis added).

Interpreting that statutory language, the Florida Supreme Court held that if a building or structure was open to the public, that was a complete defense to the charge of burglary. Miller v. State , 733 So. 2d 955, 957 (Fla. 1998).

In Delgado v. State , 776 So. 2d 233 (Fla. 2000), the supreme court also found the statutory language stating a defendant could be convicted for "remaining in" only applied if a defendant entered lawfully but remained surreptitiously. 776 So. 2d at 238.

In 2001 the Legislature amended the burglary statute in response to the Florida Supreme Court's decision in Delgado by stating it is not necessary for an invited or licensed person to remain surreptitiously to be convicted of burglary. § 810.015(1) - (6), Fla. Stat. The amended statute provides:

(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 invited entry, remaining in a dwelling, structure, or conveyance:
a. Surreptitiously, with the intent to commit an offense therein;
b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or c. To commit or attempt to commit a forcible felony, as defined in s. 776.08.

§ 810.02(1), Fla. Stat.

A number of districts have continued to vacate defendants' burglary convictions on the basis of the "open to the public" defense without specifically analyzing the change in the statute. Cappello v. State , 199 So. 3d 1113, 1115-16 (Fla. 5th DCA 2016) (reversing a defendant's burglary conviction because there was no evidence in the record that the defendant was in a portion of a convenience store that was not open to the public); Ducas v. State , 84 So. 3d 1212, 1219 (Fla. 3d DCA 2012) (reversing a defendant's burglary conviction because the pharmacy was open to the public); Colbert v. State , 49 So. 3d 819, 822 (Fla. 4th DCA 2010) (reversing a defendant's burglary conviction because the jewelry store was open to the public, even if the display box the defendant shattered was not).

A plain reading of the statute shows the "open to the public" defense is still a complete defense to burglary. Subsection (1)(b)1. lists the defense of "open to the public" or "licensed or invited to enter" in the disjunctive. Although subsection (1)(b)2. explicitly lists exceptions to the "licensed or invited entry" defenses, it does not refer to the "open to the public" defense. If the Legislature wished to make such a drastic change to allow all persons committing "forcible felonies" within a public structure to also be convicted of burglary, the language needed to be more explicit.

Thus, here the jury instruction misstated the law by instructing the jury it could convict if it found appellant remained in the parking garage to commit a forcible felony if, in fact, the parking garage was open to the public. I find, however, based on the facts of this case, appellant failed to demonstrate entitlement to relief under the standards set out in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Winokur, J., concurring.

I agree with the majority that the parts of...

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  • Black v. State
    • United States
    • Florida District Court of Appeals
    • September 24, 2020
    ...a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Wilson v. State , 288 So. 3d 108, 110 (Fla. 1st DCA 2019)."Judicial scrutiny of counsel's performance must be highly deferential." Strickland , 466 U.S. at 689, 104 S.Ct. 2052. ......

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