RYAN JAMES BREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ryan James Breen was convicted of burglary of a dwelling with assault or battery after entering an apartment he shared with his girlfriend. The appellate court reversed, finding insufficient evidence of burglary because Breen had not abandoned the premises and his girlfriend never revoked consent for him to live there.
The trial court erred in denying appellant's motion for judgment of acquittal because the evidence was insufficient to establish burglary. Burglary requires proof of unlawful entry, but appellant's entry was lawful as a co-occupant who had not abandoned the premises and whose girlfriend had not revoked her consent to his residence.
[1] A person cannot be convicted of burglary of a dwelling if the person has not abandoned the dwelling and the owner of the dwelling has not revoked consent for the person t…
[2] Proof of abandonment of leased premises requires both an intent to abandon and conduct by which the intention is carried into effect.
Previewing 2 of 5 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“Proof of abandonment of leased premises requires that there must be 'an intent to abandon and conduct by which the intention is carried into effect, or such a relinquishment by the tenant as will justify an immediate resumption of possession by the landlord.'”
Establishes the legal standard for proving abandonment of premises in burglary cases
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Join FLexlaw to unlock all legal intelligenceAppellant entered an apartment he shared with his girlfriend, was paying at least half the bills and expenses, and still had his belongings in the apa…
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Appellant challenges his conviction and sentence for burglary of a dwelling with assault or battery. We find the trial court erred in denying appellant’s motion for judgment of acquittal. The evidence established appellant entered the apartment he shared with his girlfriend, he was paying at least half of the bills and expenses for the apartment, and his belongings were still in the apartment. There was no evidence presented that appellant had abandoned the apartment. Witnesses testified appellant intended to move out in the future, but he had not yet done so. See Whetstone v. State, 778 So.2d 338, 342 (Fla. 1st DCA 2000) (“ ‘[PJroof of abandonment of leased premises requires that there must be ‘an intent to abandon and conduct by which the intention is carried into effect, or such a relinquishment by the tenant as will justify an immediate resumption of possession by the landlord.’ ”) (quoting Bobo v. Vanguard Bank & Trust Co., Inc., 512 So.2d 246, 247 (Fla. 1st DCA 1987)).
Furthermore, there was no evidence presented that appellant’s girlfriend revoked her consent to him living in the apartment. To the contrary, a witness testified she called appellant on the night of the incident and asked him to continue living there. See D.R. v. State, 734 So.2d 455, 459-60 (Fla. 1st DCA 1999) (finding insufficient evidence of burglary where “[njothing in the record suggests that consent to enter, once given to [the defendant], was ever withdrawn expressly or by implication and communicated to him”). Therefore, we reverse and remand with instructions that appellant be discharged.
REVERSED AND REMANDED, with instructions.
DAVIS and MARSTILLER, JJ, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pierre v. State, 77 So. 3d 699 (Fla. 3d DCA 2011)…fused to give her the key. The appellant had taken all of his belongings, except a couple of stray clothing items. In addition, the victim asked the landlord to take the appellant off the lease and paid the rent herself. Finally, in Breen v. State, 68 So. 3d 365, 365 (Fla. 1st DCA 2011), the First District Court of Appeal held the trial court erred in denying appellant’s motion for judgment of acquittal, finding no abandonment, where “evidence established appellant entered the apartment he shared with his g…
Authorities Cited
- Whetstone v. State, 778 So. 2d 338 (Fla. 1st DCA 2000)
- D.R. v. State, 734 So. 2d 455 (Fla. 1st DCA 1999)
- Emory C. Bobo v. Vanguard Bank & Tr. Co., Inc., 512 So. 2d 246 (Fla. 1st DCA 1987)