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, 

, 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., 

(Fla. 1979); cf.

Haugland v. State, 

, 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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