Wilborn v. State

ALTENBERND, Acting Chief Judge.

Antonyo Wilborn was arrested on a warrant for violation of community control. He does not challenge the order of violation or the six years’ imprisonment he received as a result of that violation. Rather, he challenges a conviction for burglary of a dwelling and the resulting fifteen-year sentence arising from his conduct when officers attempted to arrest him.

Mr. Wilborn knew he had not complied with the conditions of his community control. When the police attempted to arrest him, he briefly fled. During this short excursion, while fleeing from the police— and perhaps more significantly from three large neighborhood dogs, including a “wolf-chow mix” — Mr. Wilborn spent a few seconds’ refuge on a neighbor’s back porch. Thereafter he continued his flight a short distance before the police apprehended him. We have reviewed the record and conclude that, although the evidence supports a conviction for the lesser-included offense of trespass, Mr. Wilborn’s brief use of the open, partially-screened porch as a temporary safe haven does not establish competent, substantial evidence to support a conviction for burglary of a dwelling. As a result, we reverse the conviction for burglary and the resulting fifteen-year sentence. On remand, the trial court shall enter a judgment for the lesser-included offense of trespass and sentence Mr. Wilborn accordingly.

Reversed and remanded.

CASANUEVA and STRINGER, JJ„ concur.