Opinion
No. 92,864
Opinion filed April 29, 1999
Application for Review of the Decision of the District Court of Appeal — Certified Direct Conflict of Decisions, First District — Case No. 96-4580, Duval County.
Robert A. Butterworth, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and L. Michael Billmeier, Assistant Attorney General, Tallahassee, Florida, for Petitioner.
Glen P. Gifford, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Respondent.
We have for review Laster v. State, 23 Fla. L. Weekly D790 (Fla. 1st DCA 1998), in which the district court certified conflict with the opinion in Garvin v. State, 685 So.2d 17 (Fla.3d DCA 1996), regarding whether the "open to the public" defense is a complete defense to the charge of burglary. See § 810.02(1), Fla. Stat. (1995). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.
This case is controlled by our recent decision in Miller v. State, 24 Fla. L. Weekly S155 (Fla. July 16, 1998). InMiller, we held that if a defendant can establish that the premises were open to the public, then this is a complete defense to the charge of burglary. We do not find any merit to the State's argument in this case that the area behind the counter was not open to the public. Accordingly, we approve the decision of the First District Court of Appeal. We disapproveGarvin to the extent that it is inconsistent with our decision in Miller.
It is so ordered.
HARDING, C.J., and SHAW, WELLS, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.