         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
