PATRICK J. BORRICO, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Volusia County, James Clayton,
S. Purdy, Public Defender, and Susan A. Fagan, Assistant
Public Defender, Daytona Beach, for Appellant.
Moody, Attorney General, Tallahassee, and Deborah A. Chance,
Assistant Attorney General, Daytona Beach, for Appellee.
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.
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
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.
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:
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).
§ 810.09(2)(d), Fla. Stat. (2016).
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