LACY E. LEWIS v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
LACY E. LEWIS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-4466
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed May 15, 2015.
An appeal from an order of the Circuit Court for Alachua County.
Mark W. Moseley, Judge.
Lacy E. Lewis, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Appellant, Lacy E. Lewis, challenges the summary denial of his motion for
postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.
Because the record does not conclusively refute Appellant’s claim that counsel was
ineffective for advising him that consent to enter the premises from the
owner/landlord, as opposed to the occupant, was a viable defense, we reverse the
summary denial and remand for an evidentiary hearing on this claim. We affirm
the denial of all Appellant’s remaining claims without further discussion.
Appellant was charged with aggravated stalking and burglary of a dwelling.
At trial, he presented the testimony of the owner of the home that he had
permission to enter the home at any time to support his defense that he reasonably
believed that he had consent to be in the victim’s home. The jury ultimately
rejected this defense and found Appellant guilty of both charges. In ground four of
his motion, Appellant alleged that prior to trial he turned down a five-year plea
offer on the advice of counsel, who allegedly told him that he could not be
convicted of burglary because he had the consent of the owner to enter the house.
However, the owner for purposes of the burglary statute, from whom consent must
be obtained, is the tenant who occupies the burglarized premises. See Anderson v.
State, 356 So. 2d 382, 385 (Fla. 1978) (“It is . . . well-settled that a legal tenant
who occupies the burglarized premises at the time of the offense is the ‘owner’
thereof under the burglary statute, not the unoccupying fee title holder or lessor.”),
disapproved on other grounds by In re M.E., 370 So. 2d 795 (Fla. 1979); cf.
Haugland v. State, 374 So. 2d 1026, 1032 (Fla. 3d DCA 1979) (“The state here
incorrectly laid the ownership of the burglarized premises solely in the landlord
fee-title owner when the proof at trial clearly established that such owner as pled
was not in possession of such premises at the time of the burglary. Such was fatal
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to the state’s case.”). Appellant alleged that he would have taken the five-year plea
offer had he been advised that consent from the non-occupying homeowner was
not a defense to the charge. Because there is nothing in the record which refutes
Appellant’s allegations of misadvice or prejudice, we reverse and remand the
denial of ground four for an evidentiary hearing.
AFFIRMED in part, REVERSED in part, and REMANDED.
LEWIS, C.J., ROWE, and RAY, JJ., CONCUR.
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