YOUNG v. STATE (2009)

District Court of Appeal of Florida,Third District.

Marcus YOUNG, Appellant, v. The STATE of Florida, Appellee.

No. 3D07-2947.

Decided: July 01, 2009

Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.

Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant. Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

Notwithstanding a contrary suggestion in ill-advised dicta in Gaskin v. State, 869 So.2d 646, 647 n. 1 (Fla. 3d DCA 2004), there is a crime of burglary with intent to commit the underlying offense of resisting without violence, which occurs, as in this case, when a person fleeing from a lawful attempted arrest enters a structure without permission in order to evade capture. See Jean-Marie v. State, 947 So.2d 484 (Fla. 3d DCA 2006); Nicarry v. State, 795 So.2d 1114 (Fla. 5th DCA 2001); Britton v. State, 604 So.2d 1288 (Fla. 2d DCA 1992); Burton v. State, 925 A.2d 503 (Del.2007); Patrick v. State, 922 A.2d 415 (Del.2007); State v. Williams, 229 N.J.Super. 179, 550 A.2d 1298 (1988). Because the evidence supports the jury's finding that the defendant was guilty of that offense-and there is no harmful error-the judgment below is affirmed.

SCHWARTZ, Senior Judge.

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