V.B. v. State

• Decision Date: 05 July 2007
• Docket Number: No. 3D06-1819.,3D06-1819.
• Citation: 959 So.2d 1252
• Parties: V.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

959 So.2d 1252

V.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.

No. 3D06-1819.

District Court of Appeal of Florida, Third District.

July 5, 2007.

Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Emily Lora Mallor and Christopher J. Smith, Certified Legal Interns, for appellant.

Bill McCollum, Attorney General and Juliet S. Fattel, Assistant Attorney General, for appellee.

Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.

GREEN, J.

This is an appeal from an order withholding an adjudication of delinquency for trespass and placing the juvenile appellant, V.B., on probation for one year with early termination. We reverse based upon our conclusion that the State failed to prove the crime of trespass as charged.

V.B., a juvenile, was arrested on April 12, 2006 for trespass on property other than a structure or conveyance. On that date, V.B. was found in Amelia Earhart Park after closing hours. Specifically, the petition for delinquency charged that:

THIS CHILD, ON OR ABOUT APRIL 12, 2006, IN MIAMI-DADE COUNTY, FLORIDA, DID UNLAWFULLY AND WILLFULLY, WITHOUT BEING AUTHORIZED, LICENSED OR INVITED ENTER UPON REMAIN [SIC] IN THE PROPERTY OF [MIAMI DADE PARKS AND RECREATION, D/B/A AMELIA EARHART PARK AND/OR ROBERT COUNCIL] LOCATED IN THE VICINITY OF 11900 N.W. 42 AVENUE, HAVING RECEIVED NOTICE AGAINST ENTERING OR REMAINING GIVEN BY POSTING, FENCING, OR CULTIVATION AS DESCRIBED IN S. 810.011 FLA. STAT., IN VIOLATION OF S. 810.09(2)(A) AND 777.011 FLORIDA STATUTES.

At the adjudicatory hearing, the State presented evidence establishing that at approximately 3:45 a.m. on the date in question, V.B. and two other juveniles were found at Amelia Earhart Park by a park security guard who was patrolling the park.¹ The park is surrounded by three different kinds of fencing. To enter the park by car, one must enter through a gate designed for vehicular traffic. This gate is closed each evening at sunset. Pedestrians can enter the park through an open passageway that is not gated and is never closed. There was testimony that "No Trespassing" signs were posted throughout the park, but no evidence as to where or how many. After the State rested, counsel for V.B. moved for a judgment of acquittal on grounds that the State failed to establish that V.B. had been put on notice as required by the statute. This motion was denied.

V.B. testified that he entered the park through the open pedestrian passageway. He also stated that he did not see a "No Trespassing" sign upon entering the park. At the close of all of the evidence the trial court denied V.B.'s renewed motion for judgment of acquittal and found V.B. guilty of trespass. Adjudication was withheld and V.B. was placed on probation. This appeal followed.

It is well-settled that when an offense can be committed in various ways the evidence presented at trial must establish that the offense was committed in the manner alleged in the charging document. Lewis v. State, 53 So.2d 707, 708 (Fla. 1951)("No principle of criminal law is better settled than that the State must prove the allegations set up in the information or the indictment."). See also Crain v. State, 894 So.2d 59, 69 (Fla.2004); Long v. State, 92 So.2d 259, 260 (Fla.1957); State v. Presley, 824 So.2d 906, 907 (Fla. 3d DCA 2002). Here, the State charged V.B. with trespass after "having received notice against entering or remaining given by posting, fencing, or cultivation," as described in Florida Statute 810.011 (2006).²

Section 810.011(5)(a) specifically describes the requirements for providing notice by posting with regards to trespass:

Land upon which signs are placed not more than 500 feet apart along, and at each corner of, the boundaries of the land, upon...