         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-4032
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CARL DUBOIS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Suwannee County.
Paul S. Bryan, Judge.

                         April 25, 2018


ROBERTS, J.

    Carl Garett Dubois appeals his judgement and sentence for
burglary with a firearm, arguing the trial court erred in denying
his motion for judgment of acquittal on that charge because the
State did not disprove that he had consent to enter the home. We
disagree and affirm.

     The State charged the appellant with burglary with a firearm
based on the allegation that he entered a vacant home, while the
homeowner was away on business, and stole several firearms from
a locked compartment in the bedroom. The appellant knew the
homeowner because the appellant had dated the homeowner’s
sister. The sister would frequently stay at the home, and the
appellant had visited her at the home before. The State introduced
evidence from the homeowner that the appellant and the sister had
ended their relationship before the burglary occurred. The victim’s
sister offered contradictory testimony that she was still dating the
appellant at the time of the burglary.

     The appellant moved for a judgment of acquittal, arguing that
he had consent to enter the home based on his relationship with
the sister. He argued that the State failed to meet its burden of
proving that the homeowner explicitly withdrew consent for the
appellant to enter. On appeal, he argues that the trial court erred
in denying his motion for judgment of acquittal. We find no error
and affirm.

     A trial court’s denial of a motion for judgment of acquittal is
reviewed de novo to ensure the evidence is legally sufficient to
sustain a conviction. Kemp v. State, 166 So. 3d 213, 216 (Fla. 1st
DCA 2015). This Court must consider the evidence and all
reasonable inferences from the evidence in a light most favorable
to the State. Id.

     Consent to enter is an affirmative defense to burglary. D.R.
v. State, 734 So. 2d 455, 456, 459 (Fla. 1st DCA 1999). The
appellant argues that he met his initial burden to establish the
affirmative defense of consent, after which the burden shifted to
the State to disprove the defense beyond a reasonable doubt. Id.
This argument fails for several reasons. First, any implied consent
to enter that the appellant did have was limited in scope to times
when his girlfriend, the homeowner’s sister, was present. State v.
Sawko, 624 So. 2d 751, 752 (Fla. 5th DCA 1993) (holding that a
license or invitation to enter for a particular purpose does not
provide blanket consent to enter a dwelling). There was no
indication that the girlfriend was in the home at the time of the
burglary. Second, the State presented evidence that the appellant
was no longer in a relationship with the homeowner’s sister, which
further undermined the viability of the appellant’s already limited
consent to enter. We disagree that the homeowner was obligated
to expressly revoke consent here. The evidence supports a finding
that consent was implicitly revoked based on the questionable
status of his relationship and the fact that the homeowner’s sister
was not in the home when the burglary took place. Jones v. State,


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790 So. 2d 1194, 1198 (Fla. 1st DCA 2001) (holding that consent
can be implicitly revoked based on evidence).

     Even if the appellant had a limited, implied consent to enter
the home, he failed to prove consent as an affirmative defense
under the facts of this case. The trial court properly denied the
motion for judgment of acquittal on the burglary charge because it
was the role of the jury to weigh the evidence surrounding the
appellant’s consent to enter the home in this case. See Bryant v.
State, 102 So. 3d 704, 707 (Fla. 1st DCA 2012) (determining the
credibility of evidence regarding consent is an issue of fact for the
jury).

    AFFIRMED.

LEWIS and BILBREY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Megan Lynne Long, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.




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