JOHN LEON SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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John Leon Smith appealed his convictions for attempted burglary, burglary, and battery, challenging the trial court's denial of his motion to dismiss based on his claim that he was a lawful resident of the burglarized apartment. The Florida appellate court affirmed the convictions, finding a material factual dispute regarding whether Smith remained a subtenant or had become a mere guest when his tenancy ended.
The trial court correctly denied the motion to dismiss because a material factual dispute existed regarding whether Smith was a subtenant or a guest. Once Smith ceased paying rent and was physically removed from the premises by the tenant in April 1988, his guest status was terminated, making his subsequent forcible entry a burglary.
[1] A motion to dismiss under Fla.R.Crim.P. …
[2] A defendant's status as a lawful resident or subtenant can be disputed by evidence of non-payment of rent.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“on this record there is a material disputed fact as to whether the defendant, although previously a month-to-month subtenant of the said premises, ceased paying rent to the tenant several months prior to the subject burglary incidents and thereafter became a guest of the tenant.”
Establishes the basis for affirming the trial court's denial of the motion to dismiss—the existence of a factual dispute regarding the defendant's status.
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Join FLexlaw to unlock all legal intelligenceSmith pleaded nolo contendere to charges of attempted burglary, burglary, and battery while specifically reserving his right to appeal the denial of h…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
This is an appeal by the defendant John Leon Smith from final judgments of conviction and sentences for attempted burglary, burglary, and battery which were entered below upon his nolo contendere plea in which he specifically reserved for appeal the denial of his sworn motion to dismiss the informations herein under Fla.R.Crim. P. 3.190(c)(4). In support of this dispositive point, the defendant urges on appeal that the trial court erred in denying the motion to dismiss because the undisputed facts before the court established that the defendant was a subtenant and lawful resident of the burglarized apartment.
We disagree and affirm because on this record there is a material disputed fact as to whether the defendant, although previ-, ously a month-to-month subtenant of the said premises, ceased paying rent to the tenant several months prior to the subject burglary incidents and thereafter became a guest of the tenant. The defendant averred in his sworn motion to dismiss that he paid half the monthly rent due on the premises to the tenant and, therefore, had a month-to-month subtenancy in the apartment. (R.6).
The tenant, however, testified before the trial court that the defendant ceased paying any bills on the apartment before he moved out in April 1988— and that the defendant’s nonpayment of bills began in January 1988, several months before the burglary incidents, when the defendant was not working steadily. (R.7).
If, as the state claimed, the defendant was a mere guest in the apartment after January 1988, it follows that (a) the defendant’s guest status was thereafter terminated when the tenant called the police in April 1988 and had the defendant physically removed from the said premises, and (b) the defendant’s subsequent return to the subject premises and forcible, non-consensual entry and attempted entry therein constituted a burglary and attempted burglary of the subject premises. In re M.E., 370 So. 2d 795 (Fla.1979); Adirim v. State, 350 So. 2d 1082 (Fla. 3d DCA 1977), cert. denied, 365 So. 2d 709 (Fla.1978).
Given the above-stated material disputed fact, the trial court was eminently correct in denying the defendant’s sworn motion to dismiss under Fla.R.Crim.P. 3.190(c)(4). See State v. Carda, 495 So. 2d 912, 914 (Fla. 3d DCA 1986); State v. Alvarez, 403 So. 2d 1143, 1144 (Fla. 2d DCA 1981); State v. Bryant, 373 So. 2d 708, 709 (Fla. 3d DCA 1979). The final judgments of conviction and sentences under review are therefore, in all respects,
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- In the Interest of M. E., 370 So. 2d 795 (Fla. 1979)
- Adirim v. State, 350 So. 2d 1082 (Fla. 3d DCA 1977)
- State v. Bryant, 373 So. 2d 708 (Fla. 3d DCA 1979)
- ALL Clean Bldg. Maint., Inc. v. Strachan, 495 So. 2d 912 (Fla. 3d DCA 1986)
- State v. Odillio Alvarez, 403 So. 2d 1143 (Fla. 2d DCA 1981)