D.O.A., A Child, Appellant, v. STATE (2006)

District Court of Appeal of Florida,Fifth District.

D.O.A., A Child, Appellant, v. STATE of Florida, Appellee.

No. 5D06-826.

Decided: November 17, 2006

James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

D.O.A. was adjudicated guilty of two counts of burglary of a dwelling in violation of section 810.02, Florida Statutes (2006). He appeals the adjudication of only one count, contending that there was insufficient evidence that he entered or remained in the dwelling of Kimberly Waddy. Based on our review of the record, we agree. Ms. Waddy opened the door that D.O.A. was rattling and was about to enter, causing him to run away. Thus, Ms. Waddy prevented a burglary that no doubt would have been completed but for her fortuitous intervention.

We reverse one adjudication of burglary of a dwelling and remand with directions that the adjudication be amended to reflect the offense of attempted burglary of a dwelling, which was clearly shown by the evidence. The remaining burglary adjudication is unaffected.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

PER CURIAM.

ORFINGER, LAWSON and EVANDER, JJ., concur.

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