The Ex, The Closet, and The Burglary Charge

By: John Guidry

Should we love one another? Should we try to help our fellow man?

This is Orlando after all, a somewhat happier place than, say, Siberia (but they have good Vodka in Siberia, so who knows). Now, you know me, I’m always siding with the defendant, the accused. Right?

So mark your calendar, because this time I’m going to spread the blame a little, and it’s going to hurt me as much as it hurts you.

Did an argument turn into a felony burglary charge?

Overstaying your welcome can carry a 15-year prison sentence. Call John today at (407) 423-1117.

The Scene: State v. Herron

In State v. Herron, 70 So. 3d 705 (Fla. 4th DCA 2011), the defendant did something stupid—he climbed onto the balcony of his ex-girlfriend’s place and asked to be let in because he had no place to stay for the night. Ouch.

The ex, trying to be nice (or perhaps just trying to get him off the balcony), lets him in.

• The Change of Heart: Once inside, she changes her mind and tells him to leave.
• The Refusal: Of course, he doesn’t leave.
• The Twist: Instead, he notices that he has been replaced. He suspiciously searches the apartment and discovers another man hiding in the closet.

If you’ve ever watched the Jerry Springer Show, you know what happens next. A fight ensues, and Herron is arrested.

The Legal Problem: Burglary vs. Trespass

Herron was charged and convicted of Burglary of a Dwelling with a Battery.

This raised a technical issue on appeal. Typically, “Burglary” requires that you enter a property with the intent to commit a crime.

• Clearly, Herron did not enter the apartment with the intent to beat anyone up; he just wanted a place to sleep.
• He was invited in (initially).

So, how does a guest become a burglar?

The Ruling: The court upheld the conviction based on the “Remaining In” doctrine. Even though he entered legally, his presence became illegal the moment she asked him to leave. The court found that:

“There is sufficient evidence for a reasonable jury to find that Herron remained within [the girlfriend’s] apartment with the intent to commit a battery.”

By refusing to leave and then searching the apartment to find the new boyfriend, he formed the criminal intent while he was trespassing. That turns a simple argument into a First Degree Felony punishable by life in prison (punishable by life because of the battery).

John’s Takeaways

There are a few problems here, and plenty of blame to go around.

• The Victim’s Mistake: The ex never should have let her old boyfriend into the apartment when she had a new man hiding in the closet. That is a recipe for disaster.
• The Defendant’s Mistake: What possessed Herron to climb a balcony? More stupidity. But his biggest legal mistake was not walking out the door the moment she said “Get out.”
• The Lesson: Always leave when asked to leave. It is just that simple. If you stay to argue, and that argument turns physical, you are no longer a “guest” fighting with a host—you are a burglar committing a battery.

Don’t Let a Bad Breakup Become a Felony

If you have been charged with Burglary because you refused to leave a home where you thought you were welcome, we need to look at the timeline of events carefully.

Call me at (407) 423-1117. Let’s separate the drama from the crime.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.