FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Kimberly K.
L. Dimmig, II, Public Defender, and Timothy J. Ferreri,
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Johnny T.
Salgado, Assistant Attorney General, Tampa, for Appellee.
man's trash is another man's treasure. But sometimes
it's just another man's nuisance. Such was apparently
the case with the trash and overgrowth that had accumulated
around Carl Cosio's home. While we might question whether
that nuisance justified the prosecution of a felony charge
against Mr. Cosio, on this record we must affirm his
conviction and withhold of adjudication for violating
sections 403.413(4) and (6)(c), Florida Statutes (2015). We
are concerned, however, about the State's misreading of
the Florida Litter Law in the arguments it has maintained in
this appeal. We take this opportunity, then, to sift through
what, under the statute, constitutes "dumping
litter" and what does not.
the years, Mr. Cosio had turned his yard into something of a
repository for what one might charitably call unwanted
miscellany-newspapers, bottles, cans, tubs, barrels, dolls,
toys, pickup trucks-all spread out in scattered piles among a
prolific overgrowth of trees, shrubs, plants, and wild
vegetation. In 2013, the cluttered condition of Mr.
Cosio's property came to the attention of a City of Tampa
code inspector, Bruce Lucas, who issued a citation to Mr.
Cosio. As the months went by, Mr. Lucas would return to the
property frequently and speak with Mr. Cosio several times on
the phone; but whatever Mr. Cosio's efforts may have been
at clearing and cleaning the property, they were, in Mr.
Lucas's estimation, insufficient to bring the property
into compliance with the city code.
April 2015, the City of Tampa initiated a code enforcement
proceeding against Mr. Cosio concerning the condition of his
property. The code enforcement board determined that Mr.
Cosio's yard was "a serious public safety and
welfare threat" and imposed a deadline for him to bring
his property into code compliance, as well as a daily fine if
he failed to do so. The deadline came and went, Mr. Lucas
inspected the property again and, once again, found it to be
in an unacceptable condition. The code enforcement office
then initiated an abatement of the property in October 2016-a
three-day process during which city workers cut down the
offending trees and brush on Mr. Cosio's yard, trimmed
the overgrowth, and cleaned off all of the accumulated trash
and debris, including the felled trees and brush, from the
property. All of these materials were then collected together
into piles and hauled away in dump trucks.
after the city's abatement of his property, Mr. Cosio was
charged by information with one count of felony littering. He
went to trial before a jury, was found guilty, and the
circuit court withheld adjudication, sentenced him to five
years of probation, and imposed restitution and a fine.
principal dispute we will focus on concerns Mr. Cosio's
argument in his posttrial motion for judgment of acquittal
challenging the State's measurement of his litter. He
argued below, and now on appeal, that not all the debris
taken from his property was litter under the statute, and
that the amount of litter (properly construed) that was
removed was neither five hundred pounds in weight nor one
hundred cubic feet in volume, and thus did not rise to the
felonious threshold of littering under section
403.413(6)(c). Mr. Cosio takes particular issue with the
inclusion of the trees and overgrowth that the city cut down,
which he maintains cannot be construed as his
"litter." The State responds that the
"overgrown trees come under the definition of litter,
" but that, even without the overgrowth, there was still
sufficient evidence of Mr. Cosio's littered personal
effects to sustain the denial of his motion for judgment of
record is rather light on this point. There was relatively
little evidence presented as to any precise measure of Mr.
Cosio's trash and debris. The code inspector, Mr. Lucas,
testified that an entire line of cherry laurel trees was cut
down during the abatement process and that a total of fifty
tons of material was ultimately removed from the property.
Mr. Lucas's estimate in that regard clearly included not
only the piles of effects and personal property Mr. Cosio had
scattered across his yard but also all the trees and
vegetation that the city had clear cut as part of the
abatement process. Later, however, Mr. Lucas clarified that
the "accumulation of the junk, trash, and debris"
was more than one hundred cubic feet. In addition to the code
inspector's testimony, the State introduced several
photographs through Mr. Lucas that depicted the state of Mr.
Cosio's property prior to the abatement process.
Cosio argues that the trial court erroneously denied his
motion for a judgment of acquittal because the State
improperly included "overgrowth"-that is, the trees
and plants that the city had cut down during the abatement-in
its calculation of the amount of litter that was collected
from his property. We review the circuit court's denial
of such a motion de novo. Starks v. State, 42
Fla.L.Weekly D665a, D668a (Fla. 2d DCA Mar. 22, 2017) (citing
Pagan v. State, 830 ...