Hodges v. State
Robert HODGES v. STATE of Florida
Opinion of the Court
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PER CURIAM.
AFFIRMED.
COBB and GOSHORN, JJ., concur. W. SHARP, J., concurs specially, with opinion.
Concurrence
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W. SHARP, J.,
concurring specially.
Hodges’ point on appeal is that Miller v. State, 733 So.2d 955 (Fla.1998) should be applied retroactively to his case. Miller held that “open to the public” was a complete defense to the crime of burglary. It would have provided Hodges with a defense in this case, in which he was convicted of burglary. However, in order to be retroactively applied, a change in the law must represent a “fundamental” change. Witt v. State, 387 So.2d 922 (Fla.1980). What constitutes a “fundamental” change in the law is a rather fluid concept, not easily pinned down. However, I consider Miller a “refinement” of the law, and, without direction from the Florida Supreme Court, it should not be applied retroactively.
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