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Cosio v. State

Florida Court of Appeals, Second District

September 6, 2017



         Appeal from the Circuit Court for Hillsborough County; Kimberly K. Fernandez, Judge.

          Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

          LUCAS, Judge.

         One 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.


         Over 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.

         In 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.

         Shortly 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.

         The 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).[1] 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 acquittal.

         Our 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.


         Mr. 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 ...

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