RODNEY L. LONG JR.,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

___________________________/

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D15-2272

Opinion filed April 4, 2016.

Petition Alleging Ineffective Assistance of Appellate Counsel -- Original 

Jurisdiction.

Rodney L. Long, Jr., pro se, Petitioner.

Pamela Jo Bondi, Attorney General and Michael McDermott, Assistant Attorney 

General, Tallahassee, for Respondent.

WOLF, J.

In Long v. State, 156 So. 3d 1080 (Fla. 1st DCA 2015), this court affirmed 

Rodney Long’s two convictions of burglary of a dwelling, one committed at the 
2

Webb residence and the other at the McGowan residence. Long now alleges he 

received ineffective assistance of appellate counsel in his direct appeal because his 

appointed counsel failed to argue fundamental error in the jury instructions. We find 

the jury instruction on burglary was erroneous because it misinformed the jury that 

it had to find the defendant entered with an intent to commit burglary, rather than a 

separate offense. We further find that error was fundamental as to the McGowan 

offense, but it was not fundamental as to the Webb offense, because Long’s counsel 

conceded that a burglary of the Webb residence had occurred; thus, Long’s intent at 

the time of entry was not in dispute. 

At trial, on both charges, the jury was instructed as follows:

As to Counts I and II, to prove the crime of Burglary, the State 

must prove the following two elements beyond a reasonable doubt:

1. RODNEY LAMAR LONG, JR. entered a structure owned by or 

in the possession of Herbert Webb (as to Count I) and Patricia 

McGowan (as to Count II).

2. At the time of entering the structure, RODNEY LAMAR LONG, 

JR. had the intent to commit an offense in that structure.

. . . .

Even though an unlawful entering or remaining in a structure is 

proved, if the evidence does not establish that it was done with the intent 

to commit burglary, the defendant must be found not guilty of burglary.

(Emphasis added.)
3

Our sister courts have found substantially similar “circular” instructions to be 

fundamental error because they leave the jury with the impression that it can convict 

the defendant of burglary without finding the intent to commit a separate offense at 

the time of the unlawful entry. In Viveros v. State, 699 So. 2d 822, 824 (Fla. 4th 

DCA 1997), the jury was instructed that the State had to prove the defendant had a

“fully-formed, conscious intent to commit the offense of burglary” in the structure,

and then was later instructed that “[e]ven though an unlawful entering or remaining 

in a structure is proved, if the evidence does not establish that it was done with the 

intent to commit burglary, the Defendant may not be found guilty.” The Fourth 

District found that while it was not necessary to instruct the jury on the elements of 

the specific offense upon which the burglary charge was based, “this is not the same 

as saying that it is not necessary to establish that there was an intent to commit some 

underlying offense—distinct from ‘burglary’—inside the structure or conveyance,

or to instruct the jury in this regard.” Id. at 825. The court went on to find that the 

error was fundamental, because the effect of the instruction was essentially that the 

jury was instructed on trespass, a different offense. Id. See also Lawrence v. State, 

746 So. 2d 1252 (Fla. 5th DCA 1999); Harrison v. State, 743 So. 2d 178 (Fla. 3d 

DCA 1999); Puskac v. State, 735 So. 2d 522 (Fla. 4th DCA 1999).

Our sister courts have also found that counsel’s failure to raise this 

fundamental error on appeal constitutes ineffective assistance of appellate counsel 
4

necessitating a new trial. See Dean v. State, 124 So. 3d 997 (Fla. 4th DCA 2013) 

(granting petition alleging ineffective assistance of appellate counsel and remanding

for a new trial where the jury was instructed that “to commit the offense of burglary, 

defendant was required to have a ‘fully formed, conscious intent to commit the 

offense of burglary in that structure’”); Lee v. State, 958 So. 2d 521, 522 (Fla. 2d 

DCA 2007) (granting petition alleging ineffective assistance of appellate counsel 

and remanding for a new trial where the jury was instructed “that in order to convict 

on the crime of burglary the State must prove that ‘[a]t the time of entering the 

structure, Eddie Lee had a fully formed, conscious intent to commit the offense of 

burglary in that structure’”). 

The jury instruction in the instant case suffers from the same malady as these 

other cases; the jury was told it could convict the defendant without finding the 

defendant had the intent to commit an offense separate from the burglary. Initially, 

the jury was properly instructed that the State had to prove Long had the intent to 

commit an offense in the structure. However, later on in the instruction, the court

used the circular phrasing “intent to commit burglary.” This second portion of the 

instruction erroneously defined the “offense” the State needed to prove as burglary. 

The dissent relies on Freeman v. State, 787 So. 2d 152 (Fla. 4th DCA 2001). 

In Freeman, the jury was instructed that the State had to prove Freeman had “‘a fullyformed, conscious intent to commit the offense of burglary in the structure,’” but 
5

was then instructed that “‘[e]ven though an unlawful entering or remaining in a 

structure is proved, if the evidence does not establish that it was done with the intent 

to commit theft, the defendant must be found not guilty.’” Id. at 153. The Fourth 

District concluded the jury could not have been confused by the instruction because

the error in the first portion was cured by the second portion, “which was correct and 

made it clear that the jury had to find an intent to commit theft along with an unlawful 

entry.” Id. at 154. Here, unlike in Freeman, the jury was never told that in order to 

convict the defendant of burglary, it had to find the defendant entered the structure 

with the intent to commit theft or an offense other than burglary. Instead, it was told 

exactly the opposite. Thus, the instruction was error.

We must now examine the two offenses before us to determine whether 

fundamental error occurred in each case. Our supreme court has long held that 

“[f]ailing to instruct on an element of the crime over which the record reflects there 

was no dispute is not fundamental error and there must be an objection to preserve 

the issue for appeal.” State v. Delva, 575 So. 2d 643, 645 (Fla. 1991). “[A] dispute 

does not arise when mistaken identity is the sole defense and the facts of the crime 

are conceded by the defendant.” Battle v. State, 911 So. 2d 85, 89 (Fla. 2005). 

Because the alleged fundamental error relates to the requisite intent for burglary, we 

must analyze whether intent was in dispute. In the McGowan case, it was, but in the 

Webb case, it was not.
6

In the McGowan case, appellant’s intent when he entered the porch of the 

home was directly at issue. He did not dispute that he was the person who entered 

the residence. His defense was that what occurred was simply a trespass. The State’s 

theory was that he entered the structure with the intent to avoid the police who were 

chasing him which constituted the offense of resisting arrest without violence.

Appellant argued he was not the person being chased by police, and thus he lacked

the requisite intent to commit burglary. The fact that there was overwhelming 

evidence that he was the person being chased by the police does not negate that the 

issue of intent was in dispute and constituted his only defense to the burglary charge. 

Thus, the erroneous instruction as to this disputed element constituted reversible

error. Haygood v. State, 109 So. 3d 75 (Fla. 2013) (holding that overwhelming 

evidence as to disputed element does not negate fundamental error in the jury 

instruction). Accordingly, as to the McGowan burglary, we grant the petition and 

remand for a new trial. 

In the Long trial, counsel conceded a burglary had occurred at the Webb 

residence, stating: “All of this evidence tells us one thing, tells us that there was a 

burglary that was committed . . . . Obviously, there is no dispute about that.” The 

only defense was identification. Based on Long’s proper concession that a burglary 

had occurred, the element of intent was not at issue in regards to this 

charge. See Morton v. State, 459 So. 2d 322 (Fla. 3d DCA 1984) (no element of 
7

robbery was in dispute during trial, and thus, no element of robbery was material to 

jury’s deliberations, where counsel for the defendant told the jury in opening 

statement that the defendant was not disputing the fact that victims were robbed, 

only who committed the robbery). Accordingly, we deny the petition with respect

to the Webb charge. 

GRANTED in part; DENIED in part.

LEWIS, J., CONCURS; KELSEY, J., CONCURS IN PART AND DISSENTS IN 

PART WITH OPINION.
8

KELSEY, J., concurring in part and dissenting in part.

I concur in the majority’s reasoning and disposition as to Count I, burglary of 

the Webb residence. I respectfully dissent as to Count II, burglary of the McGowan 

residence, because I conclude that the record supports applying the same reasoning 

and disposition to Count II.

Just as the intentional act of committing theft in the Webb residence was not 

in dispute, the intentional act of resisting an officer after that burglary was not in 

dispute. Officer Baker, after being dispatched to the Webb residence shortly after 

5:00 a.m. and observing that it had been broken into, saw someone beside the house 

who immediately ran away in spite of the officer’s multiple commands to stop. It 

was undisputed that Officer Baker saw this person jump a fence and wade through a 

holding pond with water in it, emerging on the other side and continuing into a 

wooded area of the neighborhood. A K-9 officer tracked an individual running away 

from the pond. Mr. Long’s counsel did not dispute any of those facts. He expressly 

argued that Officer Baker “saw the individual coming on the side of the house” and 

“Officer Baker only saw one person.” Mr. Long’s counsel also admitted “there’s no 

disputing that” the K-9 officer tracked someone.

Multiple officers set up a perimeter around that area, and inside that perimeter, 

moments later, Ms. McGowan saw a man on her screened-in back lanai that faced 

the wooded area of the neighborhood. She described the man on her lanai as very 
9

dirty, so dirty that she thought he was dark-skinned; and she saw him rummaging 

around and then using a pool towel to clean himself off. Mr. Long does not dispute 

that he was this person in Ms. McGowan’s screened-in lanai, does not dispute that 

he wiped his hands on a towel, and does not dispute that his socks were wet. Nor 

does he dispute that when he saw that Ms. McGowan saw him, he ran away. He does 

not dispute that he left behind what Ms. McGowan described as “very yucky” socks, 

one of which tested overwhelmingly positive for Mr. Long’s DNA. His counsel 

admitted, “He left his socks, and there is no dispute that he left his socks there.” 

When he was arrested, he was covered in mud and was wearing shoes but no socks. 

He does not dispute that it was wrong, and a trespass (on which the jury was 

instructed correctly as a lesser included offense), for him to be on Ms. McGowan’s 

lanai. 

Rather than dispute that someone committed the act of resisting by fleeing or 

eluding, Mr. Long’s defense was identity, just as he argued identity as a defense to 

the Webb burglary. His counsel argued that “Mr. Long is not the person that [Officer 

Baker] saw earlier,” and “I would submit to you and I would argue that he [Mr. 

Long] is not the person that he [Officer Baker] saw running away from that house.” 

Counsel further argued, “But we already know that the person that Officer Baker 

saw wasn’t Mr. Long. It wasn’t the same person, so there is no resisting charge.” 

Mr. Long’s counsel admitted that the K-9 officer was tracking someone, but that the 
10

dog “can’t tell us anything about the identity of the individual. She [the dog] is telling 

us that there is an individual but not the identity of the individual.” 

Because Mr. Long conceded that the crime of resisting occurred, and argued 

only lack of evidence identifying him as the individual who committed that crime, 

we should deny the petition as to Count II as well as Count I. See Battle v. State, 911 

So. 2d 85, 89 (Fla. 2005) (holding no dispute as to an element of the crime arises 

“when mistaken identity is the sole defense and the facts of the crime are conceded 

by the defendant”). Both parties below argued that resisting was the crime other than 

burglary or trespass that satisfied the intent element of burglary as to Ms. 

McGowan’s residence. There was no dispute that a man, whom Mr. Long asserted 

was someone other than himself, committed the offense of resisting. Whether the 

perpetrator of resisting was Mr. Long or not was a jury question, which the jury 

resolved against Mr. Long even though the jury was instructed on the lesser included 

offense of trespassing and could have concluded that only trespassing occurred at 

the McGowan residence. Importantly, the fact that Mr. Long was willing to admit to 

trespassing as a lesser included offense does not change the fact that it was 

undisputed that another offense separate from burglary itself—resisting arrest—was 

committed. The only dispute was identity of the perpetrator, just as that was the only 

dispute with respect to the burglary of the Webb residence. Thus, Battle applies; and 

on these facts, the performance of Mr. Long’s appellate counsel did not 
11

“compromise[] the appellate process to such a degree as to undermine the confidence 

in the fairness and correctness of the appellate result.” Downs v. Moore, 801 So. 2d 

906, 909 (Fla. 2001) (quoting Wilson v. Wainwright, 474 So. 2d 1162, 1163 (Fla. 

1985)). Given the overwhelming amount of evidence of Mr. Long’s guilt, his 

appellate counsel could reasonably have concluded that any error in the jury 

instructions did not “reach down into the validity of the trial itself to the extent that 

a verdict of guilty could not have been obtained without the assistance of the alleged 

error.” State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991).

Even if the facts of the McGowan burglary did not bring this count within 

the Battle exception, however, the instruction given would be acceptable under the 

reasoning of Freeman v. State, 787 So. 2d 152, 153 (Fla. 4th DCA 2001) (concluding 

that any error in an instruction referring to intent to commit “the offense of burglary” 

was cured by the remainder of the instruction’s specific reference to theft as the 

required offense). Here, the trial court correctly instructed the jury that “intent to 

commit an offense” in the structure was an element of the crime of burglary, coupled 

with the correct instruction that the entry into the structure “is sufficient if the 

defendant, with the intent to commit a crime, extends any part of his body into the 

structure.” (Emphasis added.) The subsequent reference to committing “burglary” 

occurred only within the portion of the instruction informing the jury what would 

not be sufficient evidence to convict the defendant: “Even though an unlawful 
12

entering or remaining in a structure is proved, if the evidence does not establish that 

it was done with the intent to commit burglary, the defendant must be found not 

guilty of burglary.” (Emphasis added.) This was an accurate representation of the 

point of law that burglary is a specific intent crime. M.H. v. State, 936 So. 2d 1, 3 

(Fla. 3d DCA 2006) (noting statutory definition of burglary explicitly makes 

burglary a specific intent crime). 

This part of the instructions focused the jury’s attention on whether the state 

had proved that the defendant had entered Ms. McGowan’s lanai with the specific 

intent to commit burglary—which the trial court had just correctly defined as 

requiring intent to commit “an offense” or “a crime” in the entered structure. The 

requirement of proving some offense or crime other than burglary or trespass was 

further made clear in the presentation of a separate instruction on trespass. In 

addition, counsel for both parties made it clear in closing arguments that an offense 

other than burglary or trespass was at issue, with the state specifically arguing that 

resisting was the crime at issue, and the defense specifically arguing that Mr. Long 

could not be found guilty of resisting because the state had not established that he 

could be identified as the individual who ran away from Officer Baker at the Webb 

residence after being commanded to stop.

This case spotlights an issue that appears to have been caused in part by—and 

perhaps could be cured or substantially reduced by—a change in the standard jury 
13

instruction for burglary. The pertinent part of the statute itself has remained 

unchanged for decades, defining the intent element of burglary as “the intent to 

commit an offense therein [within a dwelling, structure, or conveyance] . . . .” 

§ 810.02(1)(a), (b), Fla. Stat. (2015) (emphasis added). The identity of the specific 

offense intended to be committed is secondary, so long as there is evidence from 

which the jury can find the requisite intent to commit an offense:

We recently held in L.S. v. State, 464 So. 2d 1195 (Fla.1985) that 

the exact nature of the offense alleged is surplusage so long as the 

essential element of intent to commit an offense is alleged and 

subsequently proven. Id. at 1196. In L.S., we said that the state may rely 

on section 810.07, Florida Statutes (1983), the burglary presumption of 

intent statute, whether or not the state had charged a defendant with the 

intent to commit a specified crime within the structure. We reiterate that 

beyond allegation and proof of unauthorized entry or remaining in a 

structure or conveyance, the essential element to be alleged and proven 

on a charge of burglary is the intent to commit an offense, not the intent 

to commit a specified offense, therein. See, § 810.02, Fla.Stat. (1983). 

. . . It is clear, then, that in a charge of burglary the requirement of 

proving intent to commit a specified crime to the exclusion of all others, 

while once a proper element of the charge, is no longer necessary.

Toole v. State, 472 So. 2d 1174, 1175-76 (Fla. 1985) (citing State v. Waters, 436 So. 

2d 66 (Fla. 1983) (holding that it is not necessary for an information charging 

burglary to allege the specific crime intended)); see also Joseph v. State, 965 So. 2d 

357, 358 (Fla. 4th DCA 2007) (“There is no requirement that the state allege and 

prove that entry was made with the intent to commit a specific offense; however, 

even when it does so allege, so long as it also charges and proves “the essential 
14

element of intent to commit an offense,” the specific allegation is considered 

surplusage.”) (quoting Toole, 472 So. 2d at 1175); Perreault v. State, 831 So. 2d 784, 

786 (Fla. 5th DCA 2002) (“Although it is not necessary to instruct the jury on the 

specific offense which the defendant intended to commit within the structure, it is 

necessary for the jury to find that the defendant entered the premises to commit an 

offense therein.”). This principle is also evident from the very existence of section 

810.07 of the Florida Statutes, which with respect to both burglary and attempted 

burglary, recognizes that the very act of entering “stealthily and without consent” 

constitutes prima facie evidence of the requisite intent: “proof of the entering of such 

structure or conveyance at any time stealthily and without consent of the owner or 

occupant thereof is prima facie evidence of entering with intent to commit an 

offense.” § 810.07, Fla. Stat. (2015).

Things seem to go awry when courts try to follow the standard jury instruction 

for burglary, which since 1981 has expected the trial court to name a specific offense 

within the intent element of burglary. In 1981, this was the pertinent part of the 

standard jury instruction for burglary:

At the time of [entering] [remaining in] the [structure] [conveyance] 

(defendant) had a fully-formed, conscious intent to commit the offense 

of (crime alleged) in that [structure] [conveyance].

Note to Judge: Define the offense that was the object of the burglary.
15

See Standard Jury Instructions in Criminal Cases, at 194 (1981) (quoted in Standard 

Jury Instructions in Criminal Cases—Submission 2002-1, 850 So. 2d 1272 (Fla. 

2003)). This remained the recommended instruction language (except for 

amendments to set forth the “remaining in” instructions separately), except that the 

helpful “Note to Judge” was deleted from the “entering” part of the instruction in 

2003. See Standard Jury Instructions, 850 So. 2d at 1280.

In the 2007 amendments, the intent element was changed to include two 

bracketed suggestions plus a separate note advising that the offense could not be 

trespass or burglary:

At the time of [entering] the [structure] [conveyance], (defendant) had 

the intent to commit [an offense] [(the crime alleged)] in that [structure] 

[conveyance].

The offense intended cannot be trespass or burglary.

See In re Standard Jury Instructions in Criminal Cases—Report No. 2006-2, 962 So. 

2d 310, 321 (Fla. 2007). It was around this time that decisions started appearing to 

deal with the confusion generated by the task of filling in the blanks correctly. 

Perhaps in an attempt to stem the tide of confusion, the instruction was amended 

again in 2013, as follows, to emphasize that the “an offense” blank should contain 

the name of a specific offense other than burglary or trespass:

At the time of [entering] the [structure] [conveyance], (defendant) had 

the intent to commit [(the crime alleged)] [an offense other than 

burglary or trespass] in that [structure] [conveyance].
16

See In re Standard Jury Instructions in Criminal Cases—Report No. 2012-01, 109 

So. 3d 721, 723-24 (Fla. 2013). The 2013 amendment then repeated the separate 

reminder that “The offense intended cannot be trespass or burglary.” Id. at 724. This 

is the instruction in effect today.

Here, the trial court used the following customized instruction (which is 

permissible): “At the time of entering the structure, [Mr. Long] had the intent to 

commit an offense in that structure.” This language is commendable for its 

simplicity and its adherence to the language of the statute. The trial court further 

instructed, correctly, that “[i]t is sufficient if the defendant, with the intent to commit 

a crime, extends any part of his body into the structure.” Again, the reference to “a 

crime” is accurate, consistent with the statute and cases such as Waters and Toole, 

and not confusing. But the instruction then advised the jury that the lack of evidence 

of intent would require that the jury acquit Mr. Long: “Even though an unlawful 

entering or remaining in a structure is proved, if the evidence does not establish that 

it was done with the intent to commit burglary, the defendant must be found not 

guilty of burglary.” This is what triggered the parties’ present discussion of the 

“circular instruction” argument.

The problem with the “circular instruction” argument, although it has facial 

appeal, is that the statute does not require that the jury be formally “instructed” on a 
17

specifically named offense at all. Toole, 472 So. 2d at 1175-76; Waters, 436 So. 2d 

at 68; Joseph, 965 So. 2d at 358; Perreault, 831 So. 2d at 786. It is likewise not 

necessary to define or instruct the jury on the elements of the offense. Grant v. State, 

420 So. 2d 903, 903 (Fla. 1st DCA 1982) (relying on Taylor v. State, 386 So. 2d 

825, 829 (Fla. 3d DCA 1980) (rejecting argument that court must instruct jury on 

each element of the subsumed offense)). 

As the court in Waters noted in the context of the charging document, it 

became the practice to name the offense that the burglary defendant intended to 

commit in the entered structure, probably in cases in which it was clear what offense 

the defendant allegedly intended to commit and in which there was only one 

probable offense at issue. Waters, 436 So. 2d at 68. But naming the offense is 

problematic with respect to the question of intent, which is intangible and not readily 

susceptible of proof by direct evidence; and equally problematic when the evidence 

would support a conclusion that the defendant could have intended to commit any 

one or more of multiple offenses. The prosecutor might see the evidence as 

demonstrating intent to commit theft, and the jury might see evidence of intent to 

commit assault, murder, arson–or be uncertain what the defendant was up to, but be 

convinced of intent to commit some offense. See Duncan, 606 So. 2d at 1229 (“In 

many instances, the state does not know the exact offense intended by the 

defendant.”). Intent to commit an offense is enough under the statute. See
18

§ 810.07(1), Fla. Stat. (2015) (entering “stealthily and without consent . . . is prima 

facie evidence of entering with intent to commit an offense”). 

While the jury instructions committee likely has had very good reasons for 

the specific language it has recommended in burglary cases (though the rationales 

are not published), it would appear that the present language is more confusing than 

helpful. It seems to have generated a cottage industry in parties raising, and courts 

resolving, the “circular instruction” argument, which is occurring unnecessarily in 

light of the simple and straightforward requirement of the statute itself and the 

establishment of a prima facie case under section 810.07. As the supreme court 

always cautions when approving amendments to the standard instructions, “In 

authorizing the publication and use of these instructions, we express no opinion on 

their correctness and remind all interested parties that this authorization forecloses 

neither requesting additional or alternative instructions nor contesting the legal 

correctness of the instructions.” Standard Jury Instructions, 109 So. 3d at 722. 

Perhaps it would be a good idea to revert to a simpler time, with an instruction that 

tracks the language of the statute, and at most adds that the offense must be one other 

than burglary itself or trespass, such as the following:

At the time of entering the [structure] [conveyance], (defendant) had 

the intent to commit an offense other than burglary or trespass in that 

[structure] [conveyance].
19

This would eliminate the apparently confusing, and unnecessary, dual fill-in-theblanks brackets in the current instruction. The state would then bear the burden of 

presenting evidence of intent to commit a specific offense or offenses other than 

burglary and trespass, and arguing to the jury that such evidence satisfies the 

statutory definition of burglary; whereupon the jury must find that the defendant had 

the requisite intent.