ABUKAREEM ELTAHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Abukareem Eltaher was convicted by jury of trespass of a structure, grand theft, and burglary of a conveyance. The appellate court reversed his conviction for trespass as a lesser-included offense of burglary, but affirmed the remaining convictions and rejected his claim that the trial judge improperly enhanced his sentence for exercising his right to trial.
The court reversed appellant's conviction for trespass of a structure because being an invitee is a complete defense to burglary, and where one enters a building with permission, there is no trespass. The court affirmed the sentence because the trial judge's statement that appellant committed perjury did not clearly demonstrate that the judge actually factored perjury into the sentencing decision, and appellant failed to meet his burden of demonstrating judicial vindictiveness.
[1] A conviction for trespass of a structure is improper when the structure is a dwelling and the defendant was invited inside, as permission to enter negates trespass.
[2] Entrance gained by trick or fraud can support a conviction for burglary.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Being an invitee is a complete defense to the charge of burglary.”
Establishes the legal principle that defeated the trespass and burglary convictions based on the victim's invitation
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Join FLexlaw to unlock all legal intelligenceAppellant stole items from a victim's condominium unit after the victim invited him inside. At trial, appellant testified on his own behalf. Defense c…
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STEVENSON, J.
Appellant, Abukareem Eltaher, was tried by jury and convicted of trespass of a structure, grand theft, and burglary of a conveyance. We affirm in part and reverse in part.
The State correctly concedes that appellant was improperly convicted of trespass of a structure, a lesser included offense of the burglary of a dwelling count with which he was charged. The evidence established that appellant stole items from the victim’s condominium unit after she invited him inside. Being an invitee is a complete defense to the charge of burglary. See Delgado v. State, 776 So. 2d 233 (Fla.2000). And, where one entering a building has permission to enter, there is no trespass. See State v. Jackson, 281 So. 2d 353, 354-55 (Fla.1973) (citing Cannon v. State, 102 Fla. 928, 136 So. 695 (1931)). Here, there was no competent substantial evidence presented of entry by fraud or trick. See Howard v. State, 400 So. 2d 1329, 1329 (Fla. 4th DCA 1981) (stating that “entrance gained by trick or fraud will support a conviction for burglary”).
We also reject appellant’s claim that he was improperly punished for exercising his right to a trial because the sentencing judge took into consideration that he may have committed “perjury.” At sentencing, defense counsel asked for time served and reminded the trial judge that “the court had made an offer to [appellant] of 31.5 months that he rejected.” The prosecutor then stated, “I am requesting 7 or 8 years on the burglary. The Defendant took the stand and perjured himself.” The trial judge replied, “That’s true.” The court went on to sentence appellant to concurrent five-year terms on each of the two felony convictions.
The general rule is that
Absent a demonstration by the defendant of judicial vindictiveness or punitive action, a defendant may not complain simply because he received a heavier sentence after trial. A disparity between the sentence received and the earlier offer will not alone support a finding of vindictiveness.... Having rejected the offer of a lesser sentence, [the defendant] assumes the risk of receiving a harsher sentence. Were it otherwise, plea bargaining would be futile.
Stephney v. State, 564 So. 2d 1246, 1248 (Fla. 3d DCA 1990) (quoting Mitchell v. State, 521 So. 2d 185, 190 (Fla. 4th DCA 1988)). Appellant relies on cases which hold'that it is improper for a trial judge to impose a greater sentence for the sole reason that the defendant committed perjury at trial. In City of Daytona Beach v. Del Percio, 476 So. 2d 197, 205 (Fla.1985), cited by appellant, the court explained:
[T]he proper method of imposing punishment for perjury would be through a separate prosecution. Conflicting evidence inheres in most trials, and to allow imposition of a harsher sentence merely because the trial judge believes the evidence supporting his finding of guilt, would create a catch-22 — the defendant may not be punished for his exercising of the right to trial but may be punished for his lack of candor during the trial.
Appellant reasons that because the trial judge responded “[tjhat’s true” to the prosecutor’s statement that the “[djefen-dant took the stand and perjured himself,” the trial judge must have improperly punished him for exercising his right to a jury trial. The appellant’s claim fails because it is not at all clear that, in deciding the appropriate sentence, the trial judge actually factored in appellant’s alleged perjury. The trial judge’s statement merely affirmed that she agreed with the prosecutor that appellant had perjured himself. The burden to demonstrate that an error occurred in the proceedings below rests with the appellant. See § 924.051(7), Fla. Stat. (2000).
We have considered the remaining issues raised on appeal and find no error. Accordingly, we reverse appellant’s conviction and sentence for trespass of a structure. We affirm in all other respects.
DELL and GROSS, JJ., concur.
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Citator
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Hannum v. State, 13 So. 3d 132 (Fla. 2d DCA 2009)…it would be best if Hannum did not make any more statements. Moreover, the court also improperly considered the truthfulness of Hannum’s testimony at trial. See City of Daytona Beach v. Del Percio, 476 So. 2d 197, 205 (Fla.1985); Eltaher v. State, 777 So. 2d 1203, 1205 (Fla. 4th DCA 2001). A court may not rely on a defendant’s lack of truthfulness in imposing sentence because it “would create a catch-22 — the defendant may not be punished for his exercise of the right to trial but may be punished for his lac…
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State v. Ruiz, 863 So. 2d 1205 (Fla. 2003)…re, in light of Delgado, the general verdict finding Lyons guilty of first-degree murder made it impossible to discern whether the jury relied on the legally inadequate theory of burglary), review denied, 831 So. 2d 673 (Fla.2002); Eltaher v. State, 777 So. 2d 1203, 1204 (Fla. 4th DCA) (reversing conviction of trespass, the lesser included offense of burglary, based on Delgado ), review denied, 799 So. 2d 217 (Fla. 2001). Such disparate treatment cannot be reconciled with the constitutional principles on which…
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Curley Braggs v. State, 815 So. 2d 657 (Fla. 3d DCA 2002)…o occurred or will occur only because of chapter 2001-58, Laws of Florida. In other words, if the statute had not been passed, Delgado would be applied to this case, as it was in Lyons v. State, 791 So. 2d 36 (Fla. 2d DCA 2001) and Eltaher v. State, 777 So. 2d 1203 (Fla. 4th DCA 2001), review denied, 799 So. 2d 217 (Fla. 2001). Indeed, Delgado would constitutionally have to be applied to a case such as this one, which was in the “pipeline” when Delgado was decided. Smith v. State, 598 So. 2d 1063 (Fla.1992); S…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Delgado v. State, 776 So. 2d 233 (Fla. 2000)
- City OF Daytona Beach v. Del Percio, 476 So. 2d 197 (Fla. 1985)
- Stephney v. State, 564 So. 2d 1246 (Fla. 3d DCA 1990)
- Ward Cannon v. State, 102 Fla. 928 (Fla. 1931)
- Haves v. Haves, 521 So. 2d 185 (Fla. 3d DCA 1988)
- Mitchell v. State, 521 So. 2d 185 (Fla. 4th DCA 1988)
- State v. Bennie Jackson and Henry Fisher, 281 So. 2d 353 (Fla. 1973)
- Griffin v. Henderson, 102 Fla. 928 (Fla. 1931)
- Howard v. State, 400 So. 2d 1329 (Fla. 4th DCA 1981)