Whetstone v. State, No. 1D99-2400

CourtCourt of Appeal of Florida (US)
Writing for the CourtJOANOS, J.
PartiesDavid WHETSTONE, Appellant, v. STATE of Florida, Appellee.
Decision Date29 December 2000
Docket Number No. 1D99-2400, No. 1D99-2406.

778 So.2d 338

David WHETSTONE, Appellant,
v.
STATE of Florida, Appellee

Nos. 1D99-2400, 1D99-2406.

District Court of Appeal of Florida, First District.

December 29, 2000.

Rehearing Denied February 15, 2001.


778 So.2d 339
Nancy A. Daniels, Public Defender; Dana M. Drukker, Assistant Public Defender, Tallahassee, for Appellant

Robert A. Butterworth, Attorney General; Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.

JOANOS, J.

In these consolidated appeals, appellant appeals from his judgment and sentence for armed burglary with intent to commit assault or battery and for attempted second degree murder. The state cross-appeals the trial court's failure to impose sentence pursuant to the Prison Releasee Reoffender Act after finding that appellant qualified as a reoffender.1 We affirm in part and reverse in part.

Appellant was charged with the offenses of armed burglary of a dwelling with intent to commit an assault and/or battery, contrary to sections 810.02(2)(a) and 810.02(2)(b), Florida Statutes, and attempted first degree murder. Prior to trial, the state filed notice of its intent to seek classification of appellant as an habitual felony offender, and as a prison releasee reoffender.

The evidence at trial established that appellant and his wife separated in November 1997. In February 1998, appellant's wife obtained a domestic violence injunction, prohibiting appellant from having any contact with his wife either in person, by mail, telephone, or through a third party. In addition, the injunction expressly prohibited appellant from going to, in, or near his wife's current residence, or any residence to which she later moved.

Notwithstanding the existence of the injunction, appellant's wife testified at trial that in April 1998, she and appellant lived together in the home of the wife's parents. The evidence also established that in June

778 So.2d 340
1998, appellant and his wife entered into a lease agreement for rental of a house with an option to buy. The owner of the house verified the employment status of both appellant and his wife, because he was leasing to both persons. The owner provided appellant and his wife with a form option to purchase contract to look over, then met with the couple three days later to confirm the lease agreement.2 Appellant and his wife lived together in the subject residence for two weeks or more in July 1998. Appellant's wife testified that he had not been allowed to enter the house since the end of July 1998

Neither appellant nor his wife resided in the leased premises in September 1998. Sometime in mid-September, appellant's wife began living with her male friend in his residence, but she went to the leased premises every day. During September, appellant was serving a jail sentence for trespass.

The events underlying this appeal occurred in early October 1998. Around noon of October 7, 1998, appellant's wife arrived at the subject residence with her male friend. Appellant was in the house and conducting himself as though he lived there, when his wife and her male friend entered. The trial testimony of appellant's wife indicates that the police were called, and appellant left. Sometime during the late night hours of October 8 and the early morning hours of October 9, 1998, appellant's wife arrived at the leased premises alone, and spoke to a neighbor before she entered the house. Appellant arrived on a bicycle, and accosted his wife with a knife as she came back out on the porch. The trial testimony indicates that appellant threatened to kill his wife. When she knocked the knife from appellant's hand and attempted to run away, appellant struck her in the head with a rock which he grabbed from an aquarium in the residence. Appellant's wife ran screaming into a neighbor's house; appellant remained outside talking to the neighbor, then rode away on his bicycle.

At the close of the state's case, defense counsel moved for judgment of acquittal. Counsel argued the state failed to prove a burglary, because there was no proof that appellant was not a co-tenant or that he knew he should not be on the premises. The prosecutor responded that appellant knew he should not be there because Mrs. Whetstone had "kicked him out" earlier in the day, and the injunction was proof that appellant was not permitted on the premises. The trial court noted that Mrs. Whetstone violated the injunction by allowing appellant to come back, and by living with him. The court further noted that Mrs. Whetstone had no legal document giving her exclusive use and possession of the premises. The prosecutor contended the injunction gave Mrs. Whetstone exclusive use and possession.

The trial court denied the motion for judgment of acquittal as to the attempted first degree murder charge, but reserved ruling on the burglary charge. The court was concerned with the effect a subsequent lease entered into between the parties to the domestic violence injunction would have on the efficacy of the injunction. At the close of the defense case, appellant's trial counsel renewed the motion for judgment of acquittal as to both counts. The trial court again denied the motion as to Count II, but took the motion under advisement as to the Count I burglary charge.

With regard to Count I, the jury found appellant guilty of burglary of a structure, found the structure was a dwelling, and further found that appellant committed an assault or a battery in the course of the burglary. As to Count II, the jury found appellant guilty of the lesser offense of attempted second degree murder. Appellant's

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9 practice notes
  • Jones v. State, No. 1D00-2878.
    • United States
    • Court of Appeal of Florida (US)
    • August 3, 2001
    ...this court stated that an order on a motion for a judgment of acquittal is reviewed by the de novo standard, yet in Whetstone v. State, 778 So.2d 338 (Fla. 1st DCA 2000), Lee v. State, 745 So.2d 1036 (Fla. 1st DCA 1999), Moore v. State, 537 So.2d 693 (Fla. 1st DCA 1989), and Barnett v. Stat......
  • McGhee v. State, Case No. 5D19-2265
    • United States
    • Court of Appeal of Florida (US)
    • February 14, 2020
    ...purported burglary, McGhee was not in possession of a gun and that he still resided with her at the apartment. See Whetstone v. State , 778 So. 2d 338, 342 (Fla. 1st DCA 2000) (recognizing that "[o]ne cannot commit the crime of burglary of his own premises"), receded from on other grounds b......
  • Pierre v. State , No. 3D09–1869.
    • United States
    • Court of Appeal of Florida (US)
    • November 9, 2011
    ...rightful as against the burglar and is satisfied by proof of special or temporary ownership, possession, or control.” Whetstone v. State, 778 So.2d 338, 342 (Fla. 1st DCA 2000), abrogated on other grounds by Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001), (citing M.E., 370 So.2d at 797)......
  • Cunningham v. State, No. 5D01-2080.
    • United States
    • Court of Appeal of Florida (US)
    • November 16, 2001
    ...95-184, Laws of Florida, unconstitutional for violating the single subject rule of the state constitution). 2. Cf. Whetstone v. State, 778 So.2d 338 (Fla. 1st DCA 2000), receded from on other grounds, Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001) (defendant could not be convicted of ar......
  • Request a trial to view additional results
9 cases
  • Jones v. State, No. 1D00-2878.
    • United States
    • Court of Appeal of Florida (US)
    • August 3, 2001
    ...this court stated that an order on a motion for a judgment of acquittal is reviewed by the de novo standard, yet in Whetstone v. State, 778 So.2d 338 (Fla. 1st DCA 2000), Lee v. State, 745 So.2d 1036 (Fla. 1st DCA 1999), Moore v. State, 537 So.2d 693 (Fla. 1st DCA 1989), and Barnett v. Stat......
  • McGhee v. State, Case No. 5D19-2265
    • United States
    • Court of Appeal of Florida (US)
    • February 14, 2020
    ...purported burglary, McGhee was not in possession of a gun and that he still resided with her at the apartment. See Whetstone v. State , 778 So. 2d 338, 342 (Fla. 1st DCA 2000) (recognizing that "[o]ne cannot commit the crime of burglary of his own premises"), receded from on other grounds b......
  • Pierre v. State , No. 3D09–1869.
    • United States
    • Court of Appeal of Florida (US)
    • November 9, 2011
    ...rightful as against the burglar and is satisfied by proof of special or temporary ownership, possession, or control.” Whetstone v. State, 778 So.2d 338, 342 (Fla. 1st DCA 2000), abrogated on other grounds by Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001), (citing M.E., 370 So.2d at 797)......
  • Cunningham v. State, No. 5D01-2080.
    • United States
    • Court of Appeal of Florida (US)
    • November 16, 2001
    ...95-184, Laws of Florida, unconstitutional for violating the single subject rule of the state constitution). 2. Cf. Whetstone v. State, 778 So.2d 338 (Fla. 1st DCA 2000), receded from on other grounds, Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001) (defendant could not be convicted of ar......
  • Request a trial to view additional results

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