STATE of Florida, Petitioner, v. Roberto RUIZ, Respondent; State of Florida, Petitioner, v. Curley Braggs, Respondent, 863 So. 2d 1205

PARIENTE, J. We have for review two decisions of the Third District Court of Appeal, which each certified the following question of great public importance: WHETHER

SECTION ONE OF

CHAPTER 2001-58, LAWS OF FLORIDA, HAS LEGISLATIVELY OVERRULED DELGADO V. STATE, 776 So.2d 233 (Fla.2000), FOR CRIMES COMMITTED ON OR BEFORE JULY 1, 2001. Ruiz v. State, 841 So.2d 468, 468 n. 1 (Fla. 3d DCA 2002); Braggs v. State, 815 So.2d 657, 661 (Fla. 3d DCA 2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because the certified question posed by the Third District raises constitutional issues regarding separation of powers that we need not reach to resolve these eases, we rephrase the certified question as follows: WHETHER

SECTION 1 OF

CHAPTER 2001-58, LAWS OF FLORIDA, WHICH IS CODIFIED AT

SECTION 810.015, FLORIDA STATUTES (2002), APPLIES TO CONDUCT THAT OCCURRED PRIOR TO FEBRUARY 1, 2000. For the reasons that follow, we answer the rephrased question in the negative. FACTS AND PROCEDURAL HISTORY Both Curley Braggs and Roberto Ruiz were convicted of burglary and other offenses based on conduct that occurred pri- or to February 1, 2000. The convictions for the other offenses, second-degree murder and armed robbery in Braggs’ case, and kidnapping and battery in Ruiz’s case, were affirmed by the Third District and are not at issue in this case.

The sole issue is the validity of their burglary convictions. Both Braggs and Ruiz had direct appeals of their convictions pending when this Court decided Delgado v. State, 776 So.2d 233, 240 (Fla.2000), in which we held that the phrase “remaining in” found in Florida’s burglary statute,

section 810.02(1), Florida Statutes (1989), applied “only in situations where the remaining in was done surreptitiously.” After Delgado and during the 2001 legislative session, the Florida Legislature amended the burglary statute. See Ch.2001-58, Laws of Fla. Specifically,

section 1 of

chapter 2001-58, which is the subject of the certified question, created

section 810.015, Florida Statutes (2002): 810.015 Legislative findings and intent; burglary.—

(1) The Legislature finds that the case of Delgado v. State, Slip Opinion No. SC88638 (Fla.2000) was decided contrary to legislative intent and the case law of this state relating to burglary prior to Delgado v. State. The Legislature finds that in order for a burglary to occur, it is not necessary for the licensed or invited person to remain in the dwelling, structure, or conveyance surreptitiously.

(2) It is the intent of the Legislature that the holding in Delgado v. State, Slip Opinion No. SC88638 be nullified. It is further the intent of the Legislature that s. 810.02(l)(

a) be construed in conformity with Raleigh v. State, 705 So.2d 1324 (Fla.1997); Jimenez v. State, 703 So.2d 437 (Fla.1997); Robertson v. State, 699 So.2d 1343 (Fla.1997); Routly v. State, 440 So.2d 1257 (Fla.1983); and Ray v. State, 522 So.2d 963 (Fla. 3rd DCA, 1988). This subsection shall operate retroactively to February 1, 2000.

(3) It is further the intent of the Legislature that consent remain an affirmative defense to burglary and that the lack of consent may be proven by circumstantial evidence. (Emphasis supplied.) The question posed by these two cases is whether the Legislature’s declared intent regarding Delgado is applicable to conduct that occurred prior to February 1, 2000.

Delgado directly impacts Braggs’ and Ruiz’s burglary convictions because in each case the initial entry into the victim’s residence was consensual and there was no evidence in either case of a burglary other than the commission of crimes within the residence. In Ruiz, the victim testified that she had lived with Ruiz from October 1997 through December 1997, and that on January 3, 1998, she allowed Ruiz to come into her apartment so he could retrieve some of his belongings.

The victim stated that when they went into the bedroom, Ruiz shut and locked the door, began to hit her, and eventually sexually assaulted her. The only evidence of a burglary was Ruiz’s commission of the other crimes, specifically kidnapping and battery, once he was inside the victim’s residence. In other words, Ruiz’s conviction for burglary was based solely on the evidence that he committed the crimes of kidnapping and battery within the residence. In Braggs, [t]he evidence showed that the defendant went to the home of an elderly relative, Ruby Stevenson, who had previously lent the defendant money.

The physical evidence indicated that Ms. Stevenson voluntarily admitted the defendant to her home. Once inside, the defendant stabbed her to death, stole her jewelry and a bicycle, and left the house. 815 So.2d at 659. Trial testimony established that the victim’s home had burglar bars on the doors and windows, that the victim normally kept the gate on the door locked, and that there were no signs of forced entry. As in Ruiz, the only evidence that Braggs committed a burglary in this case was his commission of other crimes inside the victim’s home, specifically second-degree murder and armed robbery.

In other words, the only evidence to support a burglary conviction in Braggs’ case was his commission of the crimes of armed robbery and second-degree murder within the victim’s residence. On appeal, Braggs and Ruiz argued that because the evidence showed that they entered the victims’ homes with permission and did not surreptitiously remain, their burglary convictions should be vacated pursuant to Delgado. In Braggs, the Third District concluded that because Braggs’ appeal was pending when Delgado was decided, he was entitled to the benefit of that decision. See 815 So.2d at 659.

The State asserted that this Court had receded from Delgado but conceded that if Delgado applied, Braggs’ burglary conviction could not stand. See id. at 660-61. The Third District determined that this Court had not receded from Delgado and that Delgado applied to Braggs’ case. See id. at 661. In Braggs, the Third District also addressed what effect, if any, the Legislature’s enactment of

chapter 2001-58 had on Braggs’ burglary conviction. Specifically, the Third District addressed “whether the effect of

section 1 of

chapter 2001-58[was] to overturn Delgado.” 815 So.2d at 659. After determining that the statute applied to Braggs’ case, the Third District concluded that

section 1 of

chapter 2001-58 (now

section 810.015, Florida Statutes (2002)) was “simply a statement of intent” and “expresse[d] the view of the Legislature that Delgado was wrongly decided and should be nullified.” Id. at 660. The Third District further concluded that unless and until this Court overrules Delgado, lower courts are required to follow that decision. See id. Accordingly, the Third District reversed Braggs’ burglary conviction and certified the question of great public importance to this Court.

In Ruiz, the Third District concluded that once Ruiz established that his entry into the victim’s residence was consensual and that he did not surreptitiously remain, the evidence was insufficient to establish the crime of burglary. See 841 So.2d at 469. As in Braggs, the Third District reversed Ruiz’s burglary conviction and certified the question of great public importance. See id. at 468-69 & n. 1. Because the Third District’s decision in Ruiz was based on Braggs, the Ruiz opinion does not contain any analysis of

chapter 2001-58. See id. at 468-69. ANALYSIS The threshold issue decided by the Third District is whether the expression of legislative intent to nullify Delgado retroactive to February 1, 2000, contained in

section 810.015(2) applies to Braggs and Ruiz, whose conduct occurred in 1995 and 1998, respectively. The Third District determined that

section 810.015(2) was intended to apply to cases such as Braggs’ and Ruiz’s, which were in the “pipeline” at the time Delgado was decided, based on the legislative history of

chapter 2001-58. See Braggs, 815 So.2d at 660. We conclude that the Third District erred in going beyond the plain meaning of

section 810.015(2), which, as the Third District acknowledged, by its own terms does not apply to those defendants whose conduct occurred prior to February 1, 2000. See id. “[T]he plain meaning of statutory language is the first consideration of statutory construction.” State v. Bradford, 787 So.2d 811, 817 (Fla.2001) (quoting Capers v.

State, 678 So.2d 330, 332 (Fla.1996)). “Even where a court is convinced that the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity.” Fla. Dep’t of Revenue v. Fla. Mun. Power Agency, 789 So.2d 320, 323 (Fla. 2001) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla.1992)). In this case, the Legislature specified that

section 810.015(2), which states an intent to nullify Delgado, was to apply retroactively to February 1, 2000. We recently explained in Floyd v. State, 850 So.2d 383 (Fla.2002), that the express language of

section 810.015(2) makes it inapplicable to cases where the conduct occurred before February 1, 2000: We are aware that in enacting

section 810.015(2), Florida Statutes (2001), the Legislature stated its intent “that the holding in Delgado ... be nullified.” However, the Legislature also stated that subsection (2) of § 810.015 would “operate retroactively to February 1, 2000.” The events in Floyd’s case occurred well before February 1, 2000. Therefore, because the events in Floyd’s case do not fall within the window established by the Legislature for retroactive application of

section 810.015(2), we need not address the issue of the retroactive effect of the statute. See R.C. v. State, 793 So.2d 1078, 1079 n. 1 (Fla. 2d DCA 2001) (reversing defendant’s conviction for burglary of a dwelling, based on Delgado v. State, and noting that the Legislature’s language in

section 810.015(2) regarding the nullification of Delgado did not apply because the defendant’s actions took place prior to February 1, 2000). Id. at 402 n. 29 (emphasis supplied). Based on our decision in Floyd, we conclude that

section 810.015(2) is inapplicable to Braggs’ and Ruiz’s cases because then-conduct occurred before February 1, 2000. We next address the State’s argument that we have receded from Delgado or, in the alternative, that we should now recede from Delgado. The State contends that we receded from Delgado in our decision in Jimenez v. State, 810 So.2d 511, 513 (Fla.2001). However, the only issue in Jimenez was whether Delgado should be applied retroactively, utilizing the criteria for retroactive application of a decision already final set forth in Witt v. State, 387 So.2d 922 (Fla.1980).

See Jimenez, 810 So.2d at 512-13. The defendant’s conviction in Jimenez was final and the defendant filed his 3.850 motion arguing for retroactivity “immediately” after the release of Delgado. Jimenez, 810 So.2d at 512. The State nevertheless asserts that our statement in Jimenez acknowledging that the Legislature “declared that Delgado was decided contrary to legislative intent,” indicates that this Court has receded from Delgado. See 810 So.2d at 513. The State takes this statement out of context because the effect of

chapter 2001-58 was not at issue in Jimenez. We agree with the Third District, which rejected the State’s argument in Braggs, explaining that “[t]he quoted portion of the Jimenez opinion ... was a discussion of why the Delgado decision did not meet the test for retroactivity: Delgado was not constitutional in nature and did not have fundamental significance.” 815 So.2d at 661. Further, as we have made clear, “this Court does not intentionally overrule itself sub silentio.” Puryear v. State, 810 So.2d 901, 905 (Fla.2002). We also decline to recede from Delgado.

As the Supreme Court of the State of Florida, “one of our primary judicial functions is to interpret statutes and constitutional provisions.” Loclce v. Hawkes, 595 So.2d 32, 36 (Fla.1992). In Delgado, we interpreted the burglary statute and concluded that the “remaining in” language applied only in cases where the “remaining in” was done surreptitiously. See 776 So.2d at 240. This decision was based on our conclusion that the Third District’s reasoning in Ray v. State, 522 So.2d 963 (Fla. 3d DCA 1988), which was previously accepted by this Court, “leads to an absurd result.” Delgado, 776 So.2d at 241.

We explained: [I]f we make the assumption that “a person would not ordinarily tolerate another person remaining in the premises and committing a crime,” and assuming that this withdrawn consent can be established at trial, a number of crimes that would normally not qualify as felonies would suddenly be elevated to burglary. In other words, any crime, including misdemeanors, committed on another person’s premises, would become a burglary if the owner of the premises becomes aware that the suspect is committing the crime. Obviously, this leads to an absurd result.

For example, if a person hosts a party and catches an invitee smoking marijuana on the premises, the invitee is not only guilty of a misdemeanor marijuana charge but also of burglary, a second-degree felony. The same can be said of the invitee who writes a bad cheek for pizza in front of an aware host. The other extreme is also true. An invitee who commits second-degree murder on another person’s premises and in the presence of an aware host could be charged with first-degree felony murder, with the underlying felony being burglary.

The possibility exists that many homicides could be elevated to first-degree murder, merely because the killing tuas committed indoors. Delgado, 776 So.2d at 239 (emphasis supplied). Thus, the essence of Delgado is that evidence of a crime committed inside the dwelling, structure, or conveyance of another cannot, in and of itself, establish the crime of burglary. Stated differently, the State cannot use “the criminal act to prove both intent and revocation” of the consent to enter. Id. at 238. In Smith v.

State, 598 So.2d 1063, 1066 (Fla.1992), we held that “any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final.” We concluded that this result was mandated by “the principles of fairness and equal treatment ... which are embodied -in the due process and equal protection provisions of

article I, sections 9 and 16 of the Florida Constitution.” Id. Thus, under Smith this Court’s

interpretation of the burglary statute in Delgado became applicable to any pending cases on review and not yet final when Delgado was decided. If we were to now recede from Delgado, defendants like Braggs and Ruiz would be treated differently than other similarly situated defendants whose appeals were pending at the time Delgado was decided and who have already received relief. See, e.g., Lyons v.

State, 791 So.2d 36, 36 (Fla. 2d DCA 2001) (reversing for a new trial where, in light of Delgado, the general verdict finding Lyons guilty of first-degree murder made it impossible to discern whether the jury relied on the legally inadequate theory of burglary), review denied, 831 So.2d 673 (Fla.2002); Eltaher v. State, 777 So.2d 1203, 1204 (Fla. 4th DCA) (reversing conviction of trespass, the lesser included offense of burglary, based on Delgado ), review denied, 799 So.2d 217 (Fla. 2001). Such disparate treatment cannot be reconciled with the constitutional principles on which our decision in Smith rests.

Accordingly, the burglary convictions in Braggs’ and Ruiz’s cases cannot stand. However, we emphasize that the reversal of these burglary convictions does not affect the validity of Braggs’ and Ruiz’s other convictions, which were affirmed by the Third District. See Ruiz, 841 So.2d at 469; Braggs, 815 So.2d at 661. CONCLUSION Based on the forgoing, we answer the rephrased question in the negative and hold that

section 1 of

chapter 2001-58, which is codified at

section 810.015, Florida Statutes (2002), is not applicable to conduct that occurred prior to February 1, 2000. We approve the decisions of the Third District in Braggs and Ruiz, but disapprove the Third District’s reasoning in Braggs to the extent it is inconsistent with this decision. It is so ordered. LEWIS and QUINCE, JJ., concur. ANSTEAD, C.J., concurs specially with an opinion, in which PARIENTE, J., concurs. WELLS, J., dissents with an opinion, in which CANTERO and BELL, JJ., concur. . For purposes of oral argument, on our own motion, we consolidated these two cases.

On our own motion, we now consolidate these cases for disposition in this opinion. . The 1989 version of the burglary statute provided: " 'Burglary' means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” § 810.02(1), Fla. Stat. (1989). .The Legislature also enacted a new definition of burglary for crimes committed after July 1, 2001, that, among other changes, includes a definition of the "remaining in” language.

See ch.2001-58, § 2, Laws of Fla. (codified at § 810.02(l)(b), Fla. Stat. (2002)). This new definition of burglary does not apply to the conduct in this case, which occurred prior to the effective date of the legislation. . At the time Ruiz committed these offenses, burglary was defined as "entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” § 810.02(1), Fla. Stat. (1997). .

At the time Braggs committed these offenses, burglary was defined as "entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” § 810.02(1), Fla. Stat. (1993). . Pipeline cases are those cases pending on direct appellate review or are otherwise not yet final at the time of a pertinent change in the law. See Smith v. State, 598 So.2d 1063, 1066 n. 5 (Fla.1992). . In Raleigh v. State, 705 So.2d 1324, 1328-29 (Fla.1997), Jimenez v.

State, 703 So.2d 437, 440-41 (Fla.1997), and Robertson v. State, 699 So.2d 1343, 1346-47 (Fla.1997), we followed Ray's reasoning without significant discussion. . As noted by Justice Wells in his dissenting opinion, there will be individuals who were convicted of burglary before Delgado who will not benefit from that decision even if they committed the exact same acts as Ruiz. See dissenting op. at 1215. However, as also explained by Justice Wells in his dissenting opinion in Fitzpatrick v.

State, 859 So.2d 486, 494 (Fla.2003), “it can be argued that you always have this kind of disparate treatment when a Witt analysis leads to a determination that a change in the decisional law will not be applied retroactively.” (Wells, J., dissenting). This consequence of our decision that Delgado should not be applied retroactively cannot be used as a basis to alter Braggs’ and Ruiz's rights under Smith, in which this Court made a clear distinction between cases on collateral review and those in the "pipeline.'' See 598 So.2d at 1066 n. 5. .

We decline to address the additional issues raised by Braggs and Ruiz that are beyond the scope of the certified question. See Whea-ton v. State, 789 So.2d 975, 975 n. 2 (Fla. 2001); McMullen v. State, 714 So.2d 368, 373 (Fla.1998).