In Burglary Charge the Burden Is on the Defendant to Establish There Was Consent to Enter
Concensual Entry is an Affirmative Defense to the Charge of Burglary Therefore the Burden is on the Defendant to Establish That There was Consent to Enter:
In Delgado v. State, 776 So. 2d 233, 240-42 (Fla. 2000), "the State prosecuted this case on the premise that Delgado's entry into the victims' home was consensual (i.e., Delgado was invited to enter the victims' home) but that at some point, this consent was withdrawn." Id. at 236.
This Court stated:
Consensual entry is an affirmative defense to the charge of burglary, and therefore the burden is on the defendant to establish that there was consent to enter. Evidence presented by the State can also establish a defendant's affirmative defense. In the present case, there exists sufficient evidence in the record that Delgado met his burden of establishing consensual entry.
In addition to the testimony from the police that there were no signs of a forced entry, a review of the record reveals that the State made numerous remarks throughout the trial which indicate that its theory was withdrawn consent after entry:
"A burglary requires a remaining in after such time as consent has been withdrawn . . . . Someone comes to your house initially, you let them in, and they become loud or boisterous . . . and you just don't want them there anymore," "Tomas Rodriquez did not hate or have any problems with Jesus Delgado, after all he let him in," and "Burglary was established at the time the defendant chose to remain in that house against the will of Violetta and Tomas Rodriguez." Id. at 240.
The Delgado majority concluded that burglary was not justified in consensual entry cases unless the defendant remained in the dwelling "surreptitiously." Id. at 240.
In Delgado, the court held that burglary is not intended to cover a situation where an invited guest turns criminal or violent once he peaceably gains entry.
Delgado, however, reiterates the well-settled rule that the burden is on the defendant to establish consent.