IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
M.M., A CHILD,
Appellant,
v. Case No. 5D15-1869
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed March 4, 2016
Appeal from the Circuit Court
for Orange County,
Daniel P. Dawson, Judge.
Robert Wesley, Public Defender, and
Andrew Jackson Fawbush, Jr., Assistant
Public Defender, Orlando, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Nora Hutchinson Hall,
Assistant Attorney General, Daytona
Beach, for Appellee.
EVANDER, J.
M.M., a juvenile, appeals an order finding him guilty of trespass on school grounds
in violation of section 810.097(1), Florida Statutes (2014), arguing that the trial court erred
in denying his motion for judgment of dismissal. He contends that the evidence was
insufficient to establish that he unlawfully entered, or remained upon, his middle school
campus immediately following his suspension. We disagree and, accordingly, affirm.
Section 810.097 provides, in pertinent part:
(1) Any person who:
(a) Does not have legitimate business on the campus
or any other authorization, license, or invitation to enter or
remain upon school property; or
(b) Is a student currently under suspension or
expulsion;
and who enters or remains upon the campus or any other
facility owned by any such school commits a trespass upon
the grounds of a school facility and is guilty of a misdemeanor
of the second degree . . . .
The incident in question occurred after M.M. acted out in his middle school class
and was escorted to the office of the school’s administrative dean. There, M.M.’s
misconduct continued as he yelled profanities at the administrative dean, pounded on her
desk, and refused to comply with her request to “calm down.” The administrative dean
advised M.M. that he was suspended and called his mother to pick him up. M.M was
then instructed by the administrative dean to go to the indoor waiting room outside of her
office. The school resource officer was contacted after M.M. continued to engage in
disruptive behavior in the waiting room. Despite instructions from both the dean and the
school resource officer that he must remain in the waiting area, M.M. walked outside into
an adjacent open-air courtyard (near the back of the school campus), where he was
arrested for trespass.
M.M. argues that he cannot be found guilty of unlawfully entering or remaining on
school property because he was expressly authorized (actually required) to remain on
2
campus until his mother arrived. Cf. E. W. v. State,
873 So. 2d 485, 487-88 (Fla. 1st DCA
2004) (holding that evidence was insufficient to establish that appellant remained
unlawfully on school property because, as a minor, appellant could not leave school
without parental consent). In essence, M.M. argues that as long as he was authorized to
enter or remain on some part of the school’s property, he could not be found to have
committed a trespass. We reject this argument.
The Florida Supreme Court has recognized that a property owner who impliedly
invites members of the public to enter onto its property can limit public access to certain
areas of that property and that a criminal trespass occurs when an individual willfully
enters or remains in the restricted area. Downer v. State,
375 So. 2d 840 (Fla. 1979). In
Downer, the defendants entered Tallahassee Memorial Hospital (TMH) for the purpose
of conducting a “consumer inspection” of the hospital’s maternity facility.
Id. at 842.
Ultimately, they entered the nursery section of the maternity ward, ignoring the sign on
the door marked “NO ADMITTANCE.”
Id. When asked to leave the nursery by a hospital
employee, the two defendants complied.
Id. at 843. Notwithstanding their compliance
with the directive, the two defendants were charged under Florida’s “trespass in structure”
statute. That statute provided:
(1) Whoever, without being authorized, licensed, or
invited, willfully enters or remains in any structure . . . or,
having been authorized, licensed, or invited is warned to
depart and refuses to do so, commits the offense of trespass
in a structure . . . .
§ 810.08(1), Fla. Stat. (Supp. 1976).
The court concluded that the defendants’ actions constituted a trespass,
notwithstanding that the hospital was open to the public:
3
[Defendants] argue that TMH is a public facility and that
members of the public are impliedly invited to enter the
building. We agree that by virtue of its operation as a public
health facility, TMH has extended an implicit invitation to
members of the public to enter its doors. However, . . . this
public access may be expressly limited to the extent
necessary for the orderly functioning of the public facility.
Id. at 843-44 (citation omitted). Significantly, the Florida Supreme Court interpreted
section 810.08(1) to support a conviction for trespass of an individual who was authorized,
licensed, or invited to enter or remain in certain areas of a structure but, who without
authority, license, or invitation had willfully entered into a restricted area in that same
structure.
Courts in other jurisdictions have similarly rejected the argument that one cannot
be found to have committed a trespass within a structure where the individual was
authorized to enter or remain in a portion of the structure. In In re Johnson,
457 N.E.2d
832 (Ohio Ct. App. 1982), a student was found to have trespassed in an unoccupied
structure where he broke into the locked office of a school employee and removed some
personal
property. 457 N.E.2d at 833. The applicable statute provided that “[n]o person
by force, stealth, or deception, shall trespass in an unoccupied structure, with purpose to
commit therein any theft offense . . . or any felony.”
Id. Johnson argued that the statute
applied “only to the structure, not a portion thereof.”
Id. at 833-34. The Ohio court
summarily rejected the argument, even though the term “unoccupied structure” was not
defined by the legislature, and concluded:
There is no distinction between trespassing from the outside
of a structure and trespassing from within the structure from a
permitted area into a locked prohibited area.
Id. at 834.
4
In Milton v. State,
751 S.W.2d 908 (Tex. Crim. App. 1988), a security officer
observed Milton walking into an area of the store that was closed to the public as reflected
by a sign marked: “STOP! NO TRESPASSING. Authorized Personnel
Only.” 751
S.W.2d at 909. Milton admitted that he did not work at the store, that he had seen the
sign, and that he did not have permission to go into the prohibited area.
Id. He was
convicted of criminal trespass in violation of Texas Penal Code Annotated section
30.05(a) (West 1988), which provided:
A person commits an offense if he enters or remains on
property or in a building of another without effective consent
and he:
(1) had notice that the entry was forbidden; or
(2) received notice to depart but failed to do so.
Id. The applicable definition of “building” was “any enclosed structure intended for use
as a habitation or for some purpose of trade, manufacture, ornament, or use.” Texas
Penal Code Ann. § 30.01(2) (West 1974). Milton argued that he did not violate the statute
because he did not enter a “building,” but merely entered an “area” in that building.
Id.
In upholding Milton’s conviction, the Texas appellate court correctly observed that to hold
otherwise “would be giving an absurd interpretation to the legislative intent behind the
statute:”
In order for this court to hold that appellant’s action did not
amount to criminal trespass under § 30.05, we would be giving
an absurd interpretation to the legislative intent behind the
statute. As appellant’s attorney admitted during oral
argument, the position which appellant desires this court to
take would require the reversal of the conviction of anyone
who enters a bank building and walks around behind the
teller’s windows. We would have to hold blameless any
person who walked into a convenience store and began
rummaging around behind the counter or any person who
5
entered the lobby of a public building and took the elevators
to other sensitive areas of that building clearly closed to the
public. We cannot accept appellant’s position. When literal
enforcement of a statute would lead to consequences which
the legislature could not have intended, courts are bound to
presume that such consequences were not intended and
adopt a construction which will promote the purpose for which
the legislation was passed.
Id. at 911.
In the instant case, M.M. was suspended prior to the events leading to his arrest
for trespass. As a result, he had no legitimate business on campus. Until his mother’s
arrival, M.M. was authorized, licensed, or invited to be in the office waiting room; he was
not authorized, licensed, or invited to be anywhere else on school grounds. Accordingly,
his willful action of disobeying the instruction of both the dean and the school resource
officer by entering into other areas of the campus constituted a violation of section
810.097(1).
A sterile literal interpretation of a statute should not be adhered to when it would
lead to absurd results. Maddox v. State,
923 So. 2d 442, 446 (Fla. 2006). The absurd
results that would occur by accepting the statutory interpretation advanced by M.M. are
readily apparent. Consider the example of a non-student, non-employee who attends a
high school basketball game. Even though the individual has no other legitimate business
on the school grounds, he willfully enters into locker rooms, chemistry labs, storage
rooms, and the trailer that serves as a temporary residence for a school security officer—
notwithstanding signs and/or verbal directives from school personnel that only authorized
persons may enter those areas. Under M.M.’s theory, no trespass would have occurred
until and unless the individual refused to comply with an instruction from an authorized
school official to leave the campus.
6
We conclude that the only reasonable interpretation of section 810.097(1) is that
“school property” means any part of the school’s property. Accordingly, a person who
does not have authorization, license, or invitation to enter or remain upon a restricted
area of the school property may be found guilty of violating section 810.097(1). This
interpretation is consistent with the clear intent of the Legislature to provide for the orderly
functioning of schools and to protect students from individuals who enter or remain on
school property or parts thereof without a legitimate reason and is also consistent with
the Florida Supreme Court’s decision in Downer.
AFFIRMED.
EDWARDS, J., concurs.
LAWSON, C.J., dissents with opinion.
7
LAWSON, C.J., dissenting. Case No. 5D15-1869
Because the plain language of controlling statutes dictates a reversal, I respectfully
dissent. M.M. was adjudicated delinquent for trespass on school grounds in violation of
section 810.097(1), Florida Statutes (2014). At the outset, it is worth noting that trespass
was not a crime at common law. As explained in Desin v. State,
414 So. 2d 516, 517-18
(Fla. 1982):
At common law, a simple trespass upon land or personal
property was not a crime; rather, it was a private wrong which
was remedied by a civil action to recover damages. 3 W.
Burdick, The Law of Crime § 720, at 71 (1946); see generally
3 W. Blackstone, Commentaries *209-14; W. Prosser,
Handbook of the Law of Torts §§ 13-14, at 63-79 (4th ed.
1971). Although simple trespass was an element in certain
common-law crimes, such as larceny, the attachment of
criminal penalties to the act of simple trespass is done
exclusively by statute. Burdick, supra, § 720, at 72. In Florida,
the legislature has enacted numerous statutes providing
criminal penalties for the most significant acts of unlawful
interference with another person's property. Some of these
statutes expressly designate as “trespass” the prohibited act,
while others prohibit unlawful interference with property
without attaching the “trespass” label. Any act of “trespass”
not made criminal by statute constitutes a private wrong under
the common law which may be remedied only by an action for
damages.
(footnotes omitted).
These observations only highlight what is generally true with respect to all crimes,
really, which is that behavior is not a crime unless the statute criminalizing the conduct
says so. And, it should be beyond well-settled that “courts will not look behind [a] statute’s
plain language for legislative intent or resort to rules of statutory construction to ascertain
intent.” State v. Burris,
875 So. 2d 408, 409 (Fla. 2004) (citation omitted). “Instead, the
statute's plain and ordinary meaning must control[.]”
Id. One statute that plainly controls
8
in this case is section 775.021(1), Florida Statutes (2014), which instructs that when a
criminal statute “is susceptible of differing constructions, it shall be construed most
favorably to the accused.”
It also seems significant to me that in choosing which common law trespasses to
criminalize, the Florida legislature seemed appropriately sensitive to the due process
concerns that are always present when it is not plainly clear when conduct is punishable
as a crime. For example, a person cannot be prosecuted for trespass on posted land
unless the landowner meets strict requirements for putting the public on notice that entry
on the land is prohibited, as follows:
“Posted land” is that land upon which:
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
2. a. Conspicuous no trespassing notice is painted on trees or
posts on the property, provided that the notice is:
(I) Painted in an international orange color and displaying the
stenciled words “No Trespassing” in letters no less than 2
inches high and 1 inch wide either vertically or horizontally;
(II) Placed so that the bottom of the painted notice is not less
than 3 feet from the ground or more than 5 feet from the
ground; and
(III) Placed at locations that are readily visible to any person
approaching the property and no more than 500 feet apart on
agricultural land.
§ 810.011(5)(a), Fla. Stat. (2014).
9
Turning to the statute in question here, section 810.097 provides that:
(1) Any person who:
(a) Does not have legitimate business on the campus or any
other authorization, license, or invitation to enter or remain
upon school property; or
(b) Is a student currently under suspension or expulsion;
and who enters or remains upon the campus or any other
facility owned by any such school commits a trespass upon
the grounds of a school facility and is guilty of a misdemeanor
of the second degree, punishable as provided in s. 775.082 or
s. 775.083.
Although M.M. had been suspended at the time of his arrest, it appears that neither
the fact of his suspension nor subsection (b) (relating to suspended students) have any
relevance to this statutory analysis. This is because the State relied upon the verbal
command that M.M. stay put—creating an implied removal of authorization to be
anywhere on campus other than the office waiting area in which he was told to stay—as
the basis for this prosecution. The suspension, of course, prompted the command to stay
in the waiting area. But, a similar command could be given to any student or guest on
campus at any time. So, under the State’s theory, adopted by the majority, a school
official can create an unlimited number of ever-changing implied trespass zones by
verbally limiting the “authorization, license, or invitation” to an area that a person is
allowed to occupy on a school campus at any given time. Aside from the due process
concerns inherent in this reading of the statute, the majority’s construction should be
rejected because the statute plainly treats the campus as a whole.
Applying the plain language of the statute to this case, M.M. did not “enter[] . . . the
campus” after being told to stay put. He was already on campus, having entered the
10
campus that morning with authorization to do so. Nor did M.M. unlawfully “remain[] upon
the campus”—to the contrary, he was expressly authorized (actually, required) to remain
on campus until a parent arrived. Cf. E.W. v. State,
873 So. 2d 485 (Fla. 1st DCA 2004).
In effect, the majority is reading the statute as prohibiting the unlawful entry onto a
campus, or any part thereof, without authorization, license or invitation. The legislature
certainly could have written the statute that way. But, it did not.
Even the State, at oral argument, admitted that the statute could be reasonably
read as referring to the campus as a whole. If this is true—and it surely is—then we are
plainly directed by section 775.021(1) to read the statute “favorably to the accused.”
The majority seeks to avoid section 775.021(1) by casting the plain reading of the
statute as unreasonable on grounds that it would “lead to absurd results.” I disagree, and
see nothing absurd about the legislature’s choice to limit the type of common law
trespasses for which a person can be prosecuted and jailed. In this case, M.M. was
certainly guilty of disobedience, which could have been punished with a longer term of
suspension. That is no more absurd than turning this particular disobedience into a crime.
In fact, it seems absurd to me that a teacher or administrator can at any time create a
trespass zone in order to turn simple disobedience into a crime—under the majority’s
theory—by telling a student to stay in his or her chair, or to sit in a corner, or to stay in a
particular line. Similarly, although absurd, I guess that an instruction to a student to go
somewhere on campus is now a crime if not obeyed—given the “remaining upon”
language of the statute.
With respect to the majority’s discussion of non-student visitors, it is worth noting
that Florida’s trespass statutes can be used to control someone who strays into an
11
unauthorized area. Under section 810.097 (the school campus statute at issue here), if
the visitor goes somewhere other than where he or she is authorized to be, their invitation
to be on campus can be revoked and they can be told to leave the campus immediately.
If the person refuses to obey the command to leave, he or she could then be lawfully
arrested for trespass. That certainly seems reasonable. And, it is consistent with other
statutes authorizing prosecution for trespass after warning. In addition, under section
810.08, Florida Statutes (2014), it is unlawful to enter any structure without being
authorized, licensed or invited. So, to use the majority’s example, a parent or other
member of the public who comes onto a campus to attend a basketball game could be
subject to prosecution for leaving the gym and wandering into other structures, such as
“the trailer that serves as a temporary residence for a school security officer.” And, with
respect to the more sinister-sounding scenarios discussed in the majority opinion, there
are other criminal statutes that apply when a person enters a structure with the intent to
commit a crime. See § 810.02, Fla. Stat. (2014) (defining the crime of burglary).
Finally, while I agree with the majority that Downer v. State,
375 So. 2d 840 (Fla.
1979), supports their analysis, this is only because the Downer court made the same error
when analyzing section 810.08(1), Florida Statutes (Supp. 1976) that the majority has
made here—expanding the statute beyond its plain language. Tellingly, the trespass
convictions upheld in Downer were ultimately vacated by the federal district court, which
correctly determined that by reading the word “structure” in section 810.02 to mean
structure or any part thereof, the Florida Supreme Court had judicially expanded a statute
that was “plain and unambiguous on its face” in a way that reasonable people would have
not foreseen. Cohen v. Katsaris,
530 F. Supp. 1092, 1095 (N.D. Fla. 1982) (quotation
12
and citation omitted), As the federal court explained, “[t]he Florida Supreme Court's
decision in Downer v. State in effect made criminal certain conduct, namely the
unauthorized entry into a particular room within a structure contrary to signs prohibiting
entry, which conduct was not clearly prohibited by the statute in question prior to the
court's interpretation.”
Id. at 1097. The district court thus concluded that “the Fourteenth
Amendment's requirement of due process prohibits the application of a criminal trespass
statute clearly, explicitly and unambiguously written to the petitioners' behavior because
that statute failed to provide fair warning that the conduct for which they have now been
convicted had been made a crime.”
Id. at 1098.
While I recognize that we are bound to follow controlling precedent from the Florida
Supreme Court, I do not view Downer as controlling because: (1) that case construed a
different statute; and (2) that case involved signage clearly designating sections of the
structure as off limits, which is less troubling than allowing school officials to verbally
create ever-changing trespass zones in otherwise public areas by implication. Though
Downer is technically considered “persuasive authority,” I do not find the case to be
persuasive at all. Instead, I am persuaded by the plain language of the clearly worded
statute under which M.M. was prosecuted. I would apply that language, as written, and
reverse. To the extent that I thought the statute should be finessed in light of the policy
concerns expressed in the majority opinion, I would address those concerns to the
legislature.
13
