Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT S.S., Appellant, v. STATE OF FLORIDA, Appellee. No. 2D19-2464 June 11, 2021 Appeal from the Circuit Court for Hillsborough County; Michael J. Scionti, Judge. Howard L. Dimmig, II, Public Defender, and Susan M. Shanahan, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Katie Salemi- Ashby, Assistant Attorney General, Tampa, for Appellee. ATKINSON, Judge. S.S. appeals the trial court's order adjudicating him delinquent for trespass on property other than a structure or conveyance. He argues that the trial court erred by adjudicating him delinquent for trespass because the State did not present sufficient evidence of the notice element of the offense. We agree and reverse. On November 20, 2018, S.S. was charged with a single count of burglary of an unoccupied structure in violation of section 810.02(4)(a), Florida Statutes (2018). At the bench trial on this charge, the State presented testimony by the victim and the officer who responded to the incident. The witnesses testified that S.S. was found on the victim's property without permission. The officer testified that S.S. stated he had entered the property to take a beach cruiser. The witnesses testified that the victim's property was entirely enclosed by a fence. The officer testified that he asked S.S. to jump over the fence and that S.S. complied with this direction. However, the witnesses did not testify about the height of the fence. No additional evidence was presented about the height of the fence surrounding the victim's property. After the close of the evidence, S.S. moved for a judgment of dismissal, arguing that the State had not presented sufficient evidence to establish a prima facie case for burglary of an 2 unoccupied structure. The trial court denied the motion. After the defense rested and counsel gave closing arguments, the trial court found the State had not presented sufficient evidence to prove all the elements of burglary beyond a reasonable doubt. However, the trial court sua sponte found that the State had presented sufficient evidence of trespass, obviating the need or opportunity for the parties to adduce or refute evidence unique to that offense.1 The trial court found that S.S. had committed the lesser included offense of trespass and later adjudicated him delinquent for trespass on property other than a structure or conveyance in violation of section 810.09(1)(a)1.2 1 The trial court did not specify at trial whether there was sufficient evidence of trespass in a structure or conveyance in violation of section 810.08, Florida Statutes (2018), or trespass of property other than a structure or conveyance in violation of section 810.09. However, in its written disposition order, the charge is listed as trespass on property other than a structure or conveyance in violation of section 810.09. 2 Section 810.09(1)(a) states, in relevant part: A person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance: 1. As to which notice against entering or remaining is given, either by actual communication to the offender or 3 A defendant may be convicted of an uncharged crime if it is a lesser included offense of a charged crime. J.F. v. State, 311 So. 3d 72, 75 (Fla. 2d DCA 2019) (identifying "convictions for lesser- included offenses" as an "exception to the general rule" that a "conviction on a charge not contained in the charging document is a denial of due process" (quoting L.C.G. v. State, 91 So. 3d 197, 198 (Fla. 2d DCA 2012))). However, a conviction for a permissive lesser included offense is only appropriate where the "elements are included in the accusatory pleading and sustained by the evidence." D.L. v. State, 491 So. 2d 1243, 1244 (Fla. 2d DCA 1986). S.S. contends that the evidence presented at trial was not sufficient to support the trial court's finding. The elements of trespass on property other than a structure or conveyance are "(1) the defendant willfully entered or remained on the property; (2) other than a structure or conveyance; (3) without being authorized, licensed, or invited; (4) when notice against by posting, fencing, or cultivation as described in s. 810.011 . . . commits the offense of trespass on property other than a structure or conveyance. 4 entering or remaining had been given to the defendant." K.M.B. v. State, 69 So. 3d 311, 314 (Fla. 4th DCA 2011) (quoting Seago v. State, 768 So. 2d 498, 500 (Fla. 2d DCA 2000)). Notice may be provided to the defendant either by "actual communication . . . or by posting, fencing, or cultivation . . . ." § 810.09(1)(a)1. Notice by fencing is accomplished when the "land [is] enclosed by a fence of substantial construction, whether with rails, logs, post and railing, iron, steel, barbed wire, other wire, or other material, which stands at least 3 feet in height." § 810.011(7). The State failed to adduce sufficient evidence of notice to support a finding that S.S. had committed the offense of trespass on property other than a structure or conveyance. At trial, the State presented evidence that S.S. had willfully entered the property other than a structure or conveyance belonging to another to commit an offense therein and without the owner's permission. However, the only evidence of notice presented at trial was that the victim's property was entirely enclosed by a fence and that S.S. had jumped over the fence. The State did not present any evidence establishing that the fence was at least three feet tall. See § 810.011(7). The testimony that S.S. had jumped over the fence, 5 without more, was insufficient for the trial court to conclude beyond a reasonable doubt that the fence met the statutory requirements for notice by fencing. There was no evidence or explanation offered by the State to support the premise on which the State's appellate argument naturally relies—that this sixteen-year-old would have no reason to jump, as opposed to step, over any fence shorter than three feet. On appeal, the State emphasizes the terminology the officer used to describe how the juvenile made his way over the fence in support of its argument that an inference could be drawn that the fence must have been the requisite height. The officer testified that, after confronting the juvenile, he asked him to "hop" over the fence, and the officer described the juvenile's compliance with that order by recounting that he "jumped." However, the inference on which the State relies for this argument rests on another unsubstantiated premise—that no ordinary individual would use the term "hop" or "jump" to describe the process of traversing a barrier less than three feet tall. Cf. Andres v. State, 254 So. 3d 283, 302 (Fla. 2018) ("[T]o be reasonable," an "inference[] drawn from admitted or proven facts must logically flow from the facts so admitted or proved. An 6 illogical or unreasonable inference does not have the force of evidence . . . ."(quoting Miller v. State, 75 So. 2d 312, 315 (Fla. 1954))). There was no evidence in the record sufficient to create a question for the finder of fact regarding the height of the fence, leaving the notice element of the offense of delinquency unproven. Therefore, we must reverse the trial court's order adjudicating S.S. delinquent of trespass on property other than a structure or conveyance because the evidence at trial was insufficient to support a finding that S.S. had committed the offense. Reversed. SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur. Opinion subject to revision prior to official publication. 7