Opinion
Case No. 5D17-4114
07-12-2019
PATRICK J. BORRICO, Appellant, v. STATE OF FLORIDA, Appellee.
James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appeal from the Circuit Court for Volusia County, James Clayton, Judge. James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee. COHEN, J.
Patrick J. Borrico was convicted and placed on two years of probation for trespassing on a construction site (count I) and resisting an officer with violence (count II). On appeal, he challenged the denial of his motion for judgment of acquittal on both counts. As to count II, we find that the State presented sufficient evidence at trial to support that conviction and affirm. However, the State failed to prove count I, and therefore, we reverse that conviction.
Borrico also argued that the court failed to hold a competency hearing and enter an order on competency. We remanded the case for entry of a nunc pro tunc competency order. The trial court held an evidentiary hearing and entered an order finding Borrico competent as of the time of trial and sentencing. Neither party subsequently challenged this order.
The evidence presented at trial reflected that Borrico had been milling around the construction site for some time and had permission to use the portable restroom. Subsequently, workers complained that Borrico was acting aggressively and that they could not access the restroom because of Borrico's extended usage. The site superintendent revoked Borrico's permission to use the portable restroom. On three separate dates prior to Borrico's arrest, workers called law enforcement to remove him from the construction site.
On the day giving rise to the charges, a worker attempting to empty a dumpster called the site superintendent and informed him that Borrico would not let him empty the dumpster, cussed at him, and threatened him. In response, the site superintendent called law enforcement. When the responding officer arrived at the scene, Borrico was using the portable restroom.
Count I of the information alleged that "not having been authorized, licensed, or invited, [Borrico] did willfully enter upon or remain in any property which is a construction site that is legally posted and identified pursuant to F.S. 810.09(2)(d)1 or F.S. 810.09(2)(d)2 . . . contrary to Florida Statute 810.09(2)(d)." That statute states:
(d) The offender commits a felony of the third degree . . . if the property trespassed is a construction site that is:§ 810.09(2)(d), Fla. Stat. (2016).
1. Greater than 1 acre in area and is legally posted and identified in substantially the following manner: "THIS AREA IS A DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY."; or
2. One acre or less in area and is identified as such with a sign that appears prominently, in letters of not less than 2 inches in height, and reads in substantially the following manner: "THIS AREA IS A DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY." The sign shall be placed at the location on the property where the permits for construction are located. For construction sites of 1 acre or less as provided in this subparagraph, it shall not be necessary to give notice by posting as defined in s. 810.011(5).
This statute establishes "two mutually exclusive forms of trespass on a construction site—trespass on a construction site of one acre or less and trespass on a construction site of more than one acre." Higgs v. State, 139 So. 3d 411, 413 (Fla. 5th DCA 2014). To convict a defendant of trespassing on a larger construction site of more than one acre, the State must prove that warning signs were posted in accordance with section 810.011(5), Florida Statutes (2016), which defines "posted land" for the purposes of the burglary and trespass statutes. Id. at 413-14. To convict a defendant of trespassing on a smaller construction site of one acre or less, the State may either prove that the site was posted in accordance with the requirements of section 810.09(2)(d)2. or "legally posted" in accordance with section 810.011(5). Id. at 413. In other words, proof that a site is "legally posted" will satisfy the requirements of section 810.09(2)(d)1. or (d)2. Id. at 414.
A site is "legally posted" if:
1. Signs are placed not more than 500 feet apart along, and at each corner of, the boundaries of the land, upon which signs there appears prominently, in letters of not less than 2 inches in height, the words "no trespassing" and in addition thereto the name of the owner, lessee, or occupant of said land. Said signs shall be placed along the boundary line of posted land in a manner and in such position as to be clearly noticeable from outside the boundary line; or§ 810.011(5)(a), Fla. Stat. (2016).
2. a. Conspicuous no trespassing notice is painted on trees or posts on the property, [subject to certain requirements].
In Higgs, 139 So. 3d at 414, the State charged the defendant with trespassing on a legally posted site pursuant to section 810.09(2)(d), but the information did not specify which subsection of the statute the defendant allegedly violated. Because the State alleged that the site was "legally posted," this Court held that the State was required to prove that the site was posted in compliance with section 810.011(5)(a) in order to convict the defendant. Id. ("[B]ecause the information alleged that the site was 'legally posted,' these are the facts to be proved by the State."). Here, as in Higgs, the information did not specify which subsection Borrico allegedly violated; it merely claimed that the site was "legally posted." See id. Accordingly, in order to convict Borrico, the State was required to prove that the site was legally posted pursuant to section 810.011(5)(a). See id.
During its case in chief, the State's only evidence regarding the signage on the site was a photograph of a "no trespassing" sign on the ground next to the portable restroom. Borrico noted the lack of evidence in his motion for judgment of acquittal. The State requested and was allowed to reopen its case. It re-called the site superintendent, who testified that the site had two additional signposts with four-by-four signs: the first stated the construction company's name, and the second stated rules, regulations, and trespass warnings for the construction site. He also explained that the sign on the ground next to the portable restroom usually hung on the dumpster but that at the time of the incident, the employee removed it so that he could empty the dumpster. That evidence was insufficient to prove the requirements of section 810.011(5)(a). The State failed to elicit any testimony regarding the distance between the signs, the location of the signs in relation to the boundaries and corners of the property, the height of the lettering on the signs, or whether the signs were clearly noticeable from the boundary line. Further, the sign that usually hung on the dumpster did not include the name of the owner, lessee, or occupant of the site, and the State did not present testimony that the four-by-four sign contained such information.
Accordingly, because the information specifically charged Borrico with trespassing on a legally posted construction site and the State failed to introduce evidence that the site was legally posted in accordance with section 810.011(5)(a), the trial court erred in denying Borrico's motion for judgment of acquittal on count I, trespass on a construction site.
AFFIRMED in part, REVERSED in part. EDWARDS and GROSSHANS, JJ., concur.