BUTLER v. STATE (2003)

ON MOTION FOR REHEARING

This matter is before the court on the defendant's motion for rehearing.   We deny the rehearing, but withdraw this court's previously issued decision and substitute the following.

The defendant appeals his conviction for burglary of an occupied dwelling and argues that the trial court committed fundamental error by including the “remaining in” language in the burglary instruction.   We have reviewed the record and find that the evidence does not support the existence of consent to enter the victim's apartment.   Furthermore, the circumstances surrounding the defendant's entry as expressed in his statement to the police, do not provide an “innocent explanation”.   See Couzo v. State, 830 So.2d 177 (Fla. 4th DCA 2002) and Miller v. State, 828 So.2d 445 (Fla. 4th DCA 2002).   Thus, the “remaining in” language was mere surplusage under the facts of this case and did not constitute fundamental error.   See also Johnekins v. State, 823 So.2d 253 (Fla. 3d DCA 2002).

The defendant's conviction is affirmed.

PER CURIAM.

STONE, HAZOURI and MAY, JJ., concur.