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400 So. 2d 1329

Docket No. 80-116.

Howard v. State

William Homer HOWARD, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided July 29, 1981.

District Court of Appeal of Florida · decided 1981-07-29

Key passage — most relied on by later courts

“is actually no consent at all and, therefore, the entrance is unauthorized.”

quoted by 5 later decisions, including Schrack v. State, Gordon v. State

“obtained consent to enter the victim's home by telling her that his van had broken down and asking to use her telephone.”

quoted by 1 later decision, including Gordon v. State

Relies on Ivory v. State · First Commerce Realty Investors v. Peninsular Title Ins. Co. · State v. Ortiz

Good law ✅— No negative treatment on recordhow we know

Decided 1981-07-29

How this case has been cited

Cited by 10 later decisions — most recently February 2008

10 state decisions

50198119902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.

¶2Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.

¶3HURLEY, Judge.

¶4Defendant was convicted of burglary and attempted sexual battery. The sole meritorious issue on appeal is whether the burglary conviction must be reversed due to the fact that the defendant obtained consent to enter the victim's home by telling her that his van had broken down and asking to use her telephone.

¶5Entering a structure with consent is normally a defense to a burglary charge. § 810.02, Fla. Stat. (1979); McEver v. State,352 So.2d 1213 (Fla. 2d DCA 1977), cert. denied,364 So.2d 888 (Fla. 1978). However, it is clear that entrance gained by trick or fraud will support a conviction for burglary. Pedone v. State,341 So.2d 532 (Fla.3d DCA 1977), cert. denied,355 So.2d 516 (Fla. 1978); 13 Am.Jur.2d Burglary § 13. This is because consent to enter obtained in such a manner is actually no consent at all and, therefore, the entrance is unauthorized. State v. Ortiz,92 N.M. 166, 584 P.2d 1306 (1978).

¶6We hold that the misrepresentations made by the defendant in this case rise to the level of trick or fraud and nullify the consent to enter obtained from his victim. The judgment is therefore

¶7AFFIRMED.

¶8DOWNEY and HERSEY, JJ., concur.

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