
    Robert HODGES, Appellant, v. STATE of Florida, Appellee.
    No. 99-2366.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1999.
    Robert Hodges, Milton, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED.

COBB and GOSHORN, JJ., concur.

W. SHARP, J., concurs specially, with opinion.

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.  