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Borrico v. State

Florida Court of Appeals, Fifth District

July 12, 2019

PATRICK J. BORRICO, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Volusia County, James Clayton, Judge.

          James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.

          COHEN, J.

         Patrick 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.[1] 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.

         The 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 site.

         On the 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.

         Count I 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).

         This 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 ...


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