Can You Burglarize Your Own Apartment?

File this under: Your taxpayer dollars hard at work, once again. Yes, there are violent criminals out there yet to be caught. Sure, there are little kids that don’t have books for school, and schools that don’t have enough money to pay their teachers. But, why spend money on such things when we can, instead, spend that money on trying to convict someone of burglarizing their own apartment? This sort of government waste is happening in Orlando, and it’s happening all over Florida. Let me provide you but one expensive example.

Ryan Breen was arrested, convicted, and sentenced on a burglary of a dwelling with an assault or battery, Breen v. State of Florida, 2011 WL 3677077 (1st DCA 2011). Mr. Breen was planning on moving out of the apartment he shared with his girlfriend, and the burglary allegation arose out of the defendant entering that apartment. As you might expect, his personal belongings were located within the apartment at the time of arrest–thus no sustainable allegation that Ryan abandoned the apartment. So, why all the fuss?

What you may not know about burglary of a dwelling with a battery therein is that it is punishable by life–and, by the time you add up the scoresheet points–this offense basically carries mandatory prison (a discussion for another day, for those of you not familiar with scoresheets). So, Ryan probably felt pretty good about the fact that the First District Court of Appeals overturned his conviction. True, tons of money had already been spent by such time, not to mention the heartache Ryan must have gone thru via his arrest, conviction, and sentencing.

Of particular importance to the appeals court was the fact that there was no evidence the defendant had moved out of the apartment “fully”, a term known as abandonment. The court found that, because his personal belongings were still in the apartment, plus proof that he was planning to move out but had not done so “yet”, the evidence was insufficient, holding that “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.”. Id, internal citations omitted.

So, this poor guy is sentenced on a punishable by life crime. By doing so, several Florida children went without books, went without a teacher, went without an adequate school lunch, and on and on and on. Thank God for appeals…..