                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

RODNEY L. LONG JR.,                    NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Petitioner,                      DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D15-2272

STATE OF FLORIDA,

     Respondent.
___________________________/


Opinion filed April 4, 2016.

Petition Alleging Ineffective Assistance of Appellate Counsel -- Original
Jurisdiction.

Rodney L. Long, Jr., pro se, Petitioner.

Pamela Jo Bondi, Attorney General and Michael McDermott, Assistant Attorney
General, Tallahassee, for Respondent.




WOLF, J.

      In Long v. State, 156 So. 3d 1080 (Fla. 1st DCA 2015), this court affirmed

Rodney Long’s two convictions of burglary of a dwelling, one committed at the
Webb residence and the other at the McGowan residence. Long now alleges he

received ineffective assistance of appellate counsel in his direct appeal because his

appointed counsel failed to argue fundamental error in the jury instructions. We find

the jury instruction on burglary was erroneous because it misinformed the jury that

it had to find the defendant entered with an intent to commit burglary, rather than a

separate offense. We further find that error was fundamental as to the McGowan

offense, but it was not fundamental as to the Webb offense, because Long’s counsel

conceded that a burglary of the Webb residence had occurred; thus, Long’s intent at

the time of entry was not in dispute.

      At trial, on both charges, the jury was instructed as follows:

            As to Counts I and II, to prove the crime of Burglary, the State
      must prove the following two elements beyond a reasonable doubt:

      1.    RODNEY LAMAR LONG, JR. entered a structure owned by or
      in the possession of Herbert Webb (as to Count I) and Patricia
      McGowan (as to Count II).

      2.    At the time of entering the structure, RODNEY LAMAR LONG,
      JR. had the intent to commit an offense in that structure.

      ....

            Even though an unlawful entering or remaining in a structure is
      proved, if the evidence does not establish that it was done with the intent
      to commit burglary, the defendant must be found not guilty of burglary.

(Emphasis added.)



                                          2
      Our sister courts have found substantially similar “circular” instructions to be

fundamental error because they leave the jury with the impression that it can convict

the defendant of burglary without finding the intent to commit a separate offense at

the time of the unlawful entry. In Viveros v. State, 699 So. 2d 822, 824 (Fla. 4th

DCA 1997), the jury was instructed that the State had to prove the defendant had a

“fully-formed, conscious intent to commit the offense of burglary” in the structure,

and then was later instructed that “[e]ven though an unlawful entering or remaining

in a structure is proved, if the evidence does not establish that it was done with the

intent to commit burglary, the Defendant may not be found guilty.” The Fourth

District found that while it was not necessary to instruct the jury on the elements of

the specific offense upon which the burglary charge was based, “this is not the same

as saying that it is not necessary to establish that there was an intent to commit some

underlying offense—distinct from ‘burglary’—inside the structure or conveyance,

or to instruct the jury in this regard.” Id. at 825. The court went on to find that the

error was fundamental, because the effect of the instruction was essentially that the

jury was instructed on trespass, a different offense. Id. See also Lawrence v. State,

746 So. 2d 1252 (Fla. 5th DCA 1999); Harrison v. State, 743 So. 2d 178 (Fla. 3d

DCA 1999); Puskac v. State, 735 So. 2d 522 (Fla. 4th DCA 1999).

      Our sister courts have also found that counsel’s failure to raise this

fundamental error on appeal constitutes ineffective assistance of appellate counsel

                                          3
necessitating a new trial. See Dean v. State, 124 So. 3d 997 (Fla. 4th DCA 2013)

(granting petition alleging ineffective assistance of appellate counsel and remanding

for a new trial where the jury was instructed that “to commit the offense of burglary,

defendant was required to have a ‘fully formed, conscious intent to commit the

offense of burglary in that structure’”); Lee v. State, 958 So. 2d 521, 522 (Fla. 2d

DCA 2007) (granting petition alleging ineffective assistance of appellate counsel

and remanding for a new trial where the jury was instructed “that in order to convict

on the crime of burglary the State must prove that ‘[a]t the time of entering the

structure, Eddie Lee had a fully formed, conscious intent to commit the offense of

burglary in that structure’”).

      The jury instruction in the instant case suffers from the same malady as these

other cases; the jury was told it could convict the defendant without finding the

defendant had the intent to commit an offense separate from the burglary. Initially,

the jury was properly instructed that the State had to prove Long had the intent to

commit an offense in the structure. However, later on in the instruction, the court

used the circular phrasing “intent to commit burglary.” This second portion of the

instruction erroneously defined the “offense” the State needed to prove as burglary.

       The dissent relies on Freeman v. State, 787 So. 2d 152 (Fla. 4th DCA 2001).

In Freeman, the jury was instructed that the State had to prove Freeman had “‘a fully-

formed, conscious intent to commit the offense of burglary in the structure,’” but

                                          4
was then instructed that “‘[e]ven though an unlawful entering or remaining in a

structure is proved, if the evidence does not establish that it was done with the intent

to commit theft, the defendant must be found not guilty.’” Id. at 153. The Fourth

District concluded the jury could not have been confused by the instruction because

the error in the first portion was cured by the second portion, “which was correct and

made it clear that the jury had to find an intent to commit theft along with an unlawful

entry.” Id. at 154. Here, unlike in Freeman, the jury was never told that in order to

convict the defendant of burglary, it had to find the defendant entered the structure

with the intent to commit theft or an offense other than burglary. Instead, it was told

exactly the opposite. Thus, the instruction was error.

      We must now examine the two offenses before us to determine whether

fundamental error occurred in each case. Our supreme court has long held that

“[f]ailing to instruct on an element of the crime over which the record reflects there

was no dispute is not fundamental error and there must be an objection to preserve

the issue for appeal.” State v. Delva, 575 So. 2d 643, 645 (Fla. 1991). “[A] dispute

does not arise when mistaken identity is the sole defense and the facts of the crime

are conceded by the defendant.”      Battle v. State, 911 So. 2d 85, 89 (Fla. 2005).

Because the alleged fundamental error relates to the requisite intent for burglary, we

must analyze whether intent was in dispute. In the McGowan case, it was, but in the

Webb case, it was not.

                                           5
      In the McGowan case, appellant’s intent when he entered the porch of the

home was directly at issue. He did not dispute that he was the person who entered

the residence. His defense was that what occurred was simply a trespass. The State’s

theory was that he entered the structure with the intent to avoid the police who were

chasing him which constituted the offense of resisting arrest without violence.

Appellant argued he was not the person being chased by police, and thus he lacked

the requisite intent to commit burglary. The fact that there was overwhelming

evidence that he was the person being chased by the police does not negate that the

issue of intent was in dispute and constituted his only defense to the burglary charge.

Thus, the erroneous instruction as to this disputed element constituted reversible

error. Haygood v. State, 109 So. 3d 75 (Fla. 2013) (holding that overwhelming

evidence as to disputed element does not negate fundamental error in the jury

instruction). Accordingly, as to the McGowan burglary, we grant the petition and

remand for a new trial.

      In the Long trial, counsel conceded a burglary had occurred at the Webb

residence, stating: “All of this evidence tells us one thing, tells us that there was a

burglary that was committed . . . . Obviously, there is no dispute about that.” The

only defense was identification. Based on Long’s proper concession that a burglary

had occurred, the element of intent was not at issue in regards to this

charge. See Morton v. State, 459 So. 2d 322 (Fla. 3d DCA 1984) (no element of

                                          6
robbery was in dispute during trial, and thus, no element of robbery was material to

jury’s deliberations, where counsel for the defendant told the jury in opening

statement that the defendant was not disputing the fact that victims were robbed,

only who committed the robbery). Accordingly, we deny the petition with respect

to the Webb charge.

      GRANTED in part; DENIED in part.

LEWIS, J., CONCURS; KELSEY, J., CONCURS IN PART AND DISSENTS IN
PART WITH OPINION.




                                         7
KELSEY, J., concurring in part and dissenting in part.

      I concur in the majority’s reasoning and disposition as to Count I, burglary of

the Webb residence. I respectfully dissent as to Count II, burglary of the McGowan

residence, because I conclude that the record supports applying the same reasoning

and disposition to Count II.

      Just as the intentional act of committing theft in the Webb residence was not

in dispute, the intentional act of resisting an officer after that burglary was not in

dispute. Officer Baker, after being dispatched to the Webb residence shortly after

5:00 a.m. and observing that it had been broken into, saw someone beside the house

who immediately ran away in spite of the officer’s multiple commands to stop. It

was undisputed that Officer Baker saw this person jump a fence and wade through a

holding pond with water in it, emerging on the other side and continuing into a

wooded area of the neighborhood. A K-9 officer tracked an individual running away

from the pond. Mr. Long’s counsel did not dispute any of those facts. He expressly

argued that Officer Baker “saw the individual coming on the side of the house” and

“Officer Baker only saw one person.” Mr. Long’s counsel also admitted “there’s no

disputing that” the K-9 officer tracked someone.

      Multiple officers set up a perimeter around that area, and inside that perimeter,

moments later, Ms. McGowan saw a man on her screened-in back lanai that faced

the wooded area of the neighborhood. She described the man on her lanai as very

                                          8
dirty, so dirty that she thought he was dark-skinned; and she saw him rummaging

around and then using a pool towel to clean himself off. Mr. Long does not dispute

that he was this person in Ms. McGowan’s screened-in lanai, does not dispute that

he wiped his hands on a towel, and does not dispute that his socks were wet. Nor

does he dispute that when he saw that Ms. McGowan saw him, he ran away. He does

not dispute that he left behind what Ms. McGowan described as “very yucky” socks,

one of which tested overwhelmingly positive for Mr. Long’s DNA. His counsel

admitted, “He left his socks, and there is no dispute that he left his socks there.”

When he was arrested, he was covered in mud and was wearing shoes but no socks.

He does not dispute that it was wrong, and a trespass (on which the jury was

instructed correctly as a lesser included offense), for him to be on Ms. McGowan’s

lanai.

         Rather than dispute that someone committed the act of resisting by fleeing or

eluding, Mr. Long’s defense was identity, just as he argued identity as a defense to

the Webb burglary. His counsel argued that “Mr. Long is not the person that [Officer

Baker] saw earlier,” and “I would submit to you and I would argue that he [Mr.

Long] is not the person that he [Officer Baker] saw running away from that house.”

Counsel further argued, “But we already know that the person that Officer Baker

saw wasn’t Mr. Long. It wasn’t the same person, so there is no resisting charge.”

Mr. Long’s counsel admitted that the K-9 officer was tracking someone, but that the

                                           9
dog “can’t tell us anything about the identity of the individual. She [the dog] is telling

us that there is an individual but not the identity of the individual.”

      Because Mr. Long conceded that the crime of resisting occurred, and argued

only lack of evidence identifying him as the individual who committed that crime,

we should deny the petition as to Count II as well as Count I. See Battle v. State, 911

So. 2d 85, 89 (Fla. 2005) (holding no dispute as to an element of the crime arises

“when mistaken identity is the sole defense and the facts of the crime are conceded

by the defendant”). Both parties below argued that resisting was the crime other than

burglary or trespass that satisfied the intent element of burglary as to Ms.

McGowan’s residence. There was no dispute that a man, whom Mr. Long asserted

was someone other than himself, committed the offense of resisting. Whether the

perpetrator of resisting was Mr. Long or not was a jury question, which the jury

resolved against Mr. Long even though the jury was instructed on the lesser included

offense of trespassing and could have concluded that only trespassing occurred at

the McGowan residence. Importantly, the fact that Mr. Long was willing to admit to

trespassing as a lesser included offense does not change the fact that it was

undisputed that another offense separate from burglary itself—resisting arrest—was

committed. The only dispute was identity of the perpetrator, just as that was the only

dispute with respect to the burglary of the Webb residence. Thus, Battle applies; and

on these facts, the performance of Mr. Long’s appellate counsel did not

                                           10
“compromise[] the appellate process to such a degree as to undermine the confidence

in the fairness and correctness of the appellate result.” Downs v. Moore, 801 So. 2d

906, 909 (Fla. 2001) (quoting Wilson v. Wainwright, 474 So. 2d 1162, 1163 (Fla.

1985)). Given the overwhelming amount of evidence of Mr. Long’s guilt, his

appellate counsel could reasonably have concluded that any error in the jury

instructions did not “reach down into the validity of the trial itself to the extent that

a verdict of guilty could not have been obtained without the assistance of the alleged

error.” State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991).

      Even if the facts of the McGowan burglary did not bring this count within

the Battle exception, however, the instruction given would be acceptable under the

reasoning of Freeman v. State, 787 So. 2d 152, 153 (Fla. 4th DCA 2001) (concluding

that any error in an instruction referring to intent to commit “the offense of burglary”

was cured by the remainder of the instruction’s specific reference to theft as the

required offense). Here, the trial court correctly instructed the jury that “intent to

commit an offense” in the structure was an element of the crime of burglary, coupled

with the correct instruction that the entry into the structure “is sufficient if the

defendant, with the intent to commit a crime, extends any part of his body into the

structure.” (Emphasis added.) The subsequent reference to committing “burglary”

occurred only within the portion of the instruction informing the jury what would

not be sufficient evidence to convict the defendant: “Even though an unlawful

                                           11
entering or remaining in a structure is proved, if the evidence does not establish that

it was done with the intent to commit burglary, the defendant must be found not

guilty of burglary.” (Emphasis added.) This was an accurate representation of the

point of law that burglary is a specific intent crime. M.H. v. State, 936 So. 2d 1, 3

(Fla. 3d DCA 2006) (noting statutory definition of burglary explicitly makes

burglary a specific intent crime).

      This part of the instructions focused the jury’s attention on whether the state

had proved that the defendant had entered Ms. McGowan’s lanai with the specific

intent to commit burglary—which the trial court had just correctly defined as

requiring intent to commit “an offense” or “a crime” in the entered structure. The

requirement of proving some offense or crime other than burglary or trespass was

further made clear in the presentation of a separate instruction on trespass. In

addition, counsel for both parties made it clear in closing arguments that an offense

other than burglary or trespass was at issue, with the state specifically arguing that

resisting was the crime at issue, and the defense specifically arguing that Mr. Long

could not be found guilty of resisting because the state had not established that he

could be identified as the individual who ran away from Officer Baker at the Webb

residence after being commanded to stop.

      This case spotlights an issue that appears to have been caused in part by—and

perhaps could be cured or substantially reduced by—a change in the standard jury

                                          12
instruction for burglary. The pertinent part of the statute itself has remained

unchanged for decades, defining the intent element of burglary as “the intent to

commit an offense therein [within a dwelling, structure, or conveyance] . . . .”

§ 810.02(1)(a), (b), Fla. Stat. (2015) (emphasis added). The identity of the specific

offense intended to be committed is secondary, so long as there is evidence from

which the jury can find the requisite intent to commit an offense:

               We recently held in L.S. v. State, 464 So. 2d 1195 (Fla.1985) that
      the exact nature of the offense alleged is surplusage so long as the
      essential element of intent to commit an offense is alleged and
      subsequently proven. Id. at 1196. In L.S., we said that the state may rely
      on section 810.07, Florida Statutes (1983), the burglary presumption of
      intent statute, whether or not the state had charged a defendant with the
      intent to commit a specified crime within the structure. We reiterate that
      beyond allegation and proof of unauthorized entry or remaining in a
      structure or conveyance, the essential element to be alleged and proven
      on a charge of burglary is the intent to commit an offense, not the intent
      to commit a specified offense, therein. See, § 810.02, Fla.Stat. (1983).
      . . . It is clear, then, that in a charge of burglary the requirement of
      proving intent to commit a specified crime to the exclusion of all others,
      while once a proper element of the charge, is no longer necessary.

Toole v. State, 472 So. 2d 1174, 1175-76 (Fla. 1985) (citing State v. Waters, 436 So.

2d 66 (Fla. 1983) (holding that it is not necessary for an information charging

burglary to allege the specific crime intended)); see also Joseph v. State, 965 So. 2d

357, 358 (Fla. 4th DCA 2007) (“There is no requirement that the state allege and

prove that entry was made with the intent to commit a specific offense; however,

even when it does so allege, so long as it also charges and proves “the essential


                                          13
element of intent to commit an offense,” the specific allegation is considered

surplusage.”) (quoting Toole, 472 So. 2d at 1175); Perreault v. State, 831 So. 2d 784,

786 (Fla. 5th DCA 2002) (“Although it is not necessary to instruct the jury on the

specific offense which the defendant intended to commit within the structure, it is

necessary for the jury to find that the defendant entered the premises to commit an

offense therein.”). This principle is also evident from the very existence of section

810.07 of the Florida Statutes, which with respect to both burglary and attempted

burglary, recognizes that the very act of entering “stealthily and without consent”

constitutes prima facie evidence of the requisite intent: “proof of the entering of such

structure or conveyance at any time stealthily and without consent of the owner or

occupant thereof is prima facie evidence of entering with intent to commit an

offense.” § 810.07, Fla. Stat. (2015).

      Things seem to go awry when courts try to follow the standard jury instruction

for burglary, which since 1981 has expected the trial court to name a specific offense

within the intent element of burglary. In 1981, this was the pertinent part of the

standard jury instruction for burglary:

      At the time of [entering] [remaining in] the [structure] [conveyance]
      (defendant) had a fully-formed, conscious intent to commit the offense
      of (crime alleged) in that [structure] [conveyance].

      Note to Judge: Define the offense that was the object of the burglary.



                                          14
See Standard Jury Instructions in Criminal Cases, at 194 (1981) (quoted in Standard

Jury Instructions in Criminal Cases—Submission 2002-1, 850 So. 2d 1272 (Fla.

2003)). This remained the recommended instruction language (except for

amendments to set forth the “remaining in” instructions separately), except that the

helpful “Note to Judge” was deleted from the “entering” part of the instruction in

2003. See Standard Jury Instructions, 850 So. 2d at 1280.

      In the 2007 amendments, the intent element was changed to include two

bracketed suggestions plus a separate note advising that the offense could not be

trespass or burglary:

      At the time of [entering] the [structure] [conveyance], (defendant) had
      the intent to commit [an offense] [(the crime alleged)] in that [structure]
      [conveyance].

      The offense intended cannot be trespass or burglary.

See In re Standard Jury Instructions in Criminal Cases—Report No. 2006-2, 962 So.

2d 310, 321 (Fla. 2007). It was around this time that decisions started appearing to

deal with the confusion generated by the task of filling in the blanks correctly.

Perhaps in an attempt to stem the tide of confusion, the instruction was amended

again in 2013, as follows, to emphasize that the “an offense” blank should contain

the name of a specific offense other than burglary or trespass:

      At the time of [entering] the [structure] [conveyance], (defendant) had
      the intent to commit [(the crime alleged)] [an offense other than
      burglary or trespass] in that [structure] [conveyance].

                                          15
See In re Standard Jury Instructions in Criminal Cases—Report No. 2012-01, 109

So. 3d 721, 723-24 (Fla. 2013). The 2013 amendment then repeated the separate

reminder that “The offense intended cannot be trespass or burglary.” Id. at 724. This

is the instruction in effect today.

       Here, the trial court used the following customized instruction (which is

permissible): “At the time of entering the structure, [Mr. Long] had the intent to

commit an offense in that structure.” This language is commendable for its

simplicity and its adherence to the language of the statute. The trial court further

instructed, correctly, that “[i]t is sufficient if the defendant, with the intent to commit

a crime, extends any part of his body into the structure.” Again, the reference to “a

crime” is accurate, consistent with the statute and cases such as Waters and Toole,

and not confusing. But the instruction then advised the jury that the lack of evidence

of intent would require that the jury acquit Mr. Long: “Even though an unlawful

entering or remaining in a structure is proved, if the evidence does not establish that

it was done with the intent to commit burglary, the defendant must be found not

guilty of burglary.” This is what triggered the parties’ present discussion of the

“circular instruction” argument.

       The problem with the “circular instruction” argument, although it has facial

appeal, is that the statute does not require that the jury be formally “instructed” on a


                                            16
specifically named offense at all. Toole, 472 So. 2d at 1175-76; Waters, 436 So. 2d

at 68; Joseph, 965 So. 2d at 358; Perreault, 831 So. 2d at 786. It is likewise not

necessary to define or instruct the jury on the elements of the offense. Grant v. State,

420 So. 2d 903, 903 (Fla. 1st DCA 1982) (relying on Taylor v. State, 386 So. 2d

825, 829 (Fla. 3d DCA 1980) (rejecting argument that court must instruct jury on

each element of the subsumed offense)).

      As the court in Waters noted in the context of the charging document, it

became the practice to name the offense that the burglary defendant intended to

commit in the entered structure, probably in cases in which it was clear what offense

the defendant allegedly intended to commit and in which there was only one

probable offense at issue. Waters, 436 So. 2d at 68. But naming the offense is

problematic with respect to the question of intent, which is intangible and not readily

susceptible of proof by direct evidence; and equally problematic when the evidence

would support a conclusion that the defendant could have intended to commit any

one or more of multiple offenses. The prosecutor might see the evidence as

demonstrating intent to commit theft, and the jury might see evidence of intent to

commit assault, murder, arson–or be uncertain what the defendant was up to, but be

convinced of intent to commit some offense. See Duncan, 606 So. 2d at 1229 (“In

many instances, the state does not know the exact offense intended by the

defendant.”). Intent to commit an offense is enough under the statute. See

                                          17
§ 810.07(1), Fla. Stat. (2015) (entering “stealthily and without consent . . . is prima

facie evidence of entering with intent to commit an offense”).

      While the jury instructions committee likely has had very good reasons for

the specific language it has recommended in burglary cases (though the rationales

are not published), it would appear that the present language is more confusing than

helpful. It seems to have generated a cottage industry in parties raising, and courts

resolving, the “circular instruction” argument, which is occurring unnecessarily in

light of the simple and straightforward requirement of the statute itself and the

establishment of a prima facie case under section 810.07. As the supreme court

always cautions when approving amendments to the standard instructions, “In

authorizing the publication and use of these instructions, we express no opinion on

their correctness and remind all interested parties that this authorization forecloses

neither requesting additional or alternative instructions nor contesting the legal

correctness of the instructions.” Standard Jury Instructions, 109 So. 3d at 722.

Perhaps it would be a good idea to revert to a simpler time, with an instruction that

tracks the language of the statute, and at most adds that the offense must be one other

than burglary itself or trespass, such as the following:

      At the time of entering the [structure] [conveyance], (defendant) had
      the intent to commit an offense other than burglary or trespass in that
      [structure] [conveyance].



                                          18
This would eliminate the apparently confusing, and unnecessary, dual fill-in-the-

blanks brackets in the current instruction. The state would then bear the burden of

presenting evidence of intent to commit a specific offense or offenses other than

burglary and trespass, and arguing to the jury that such evidence satisfies the

statutory definition of burglary; whereupon the jury must find that the defendant had

the requisite intent.




                                         19
