10-5917 B.C., A CHILD, v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 10-5917

Case Date: 07/18/2011

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA B. C., A CHILD, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed July 18, 2011. An appeal from the Circuit Court for Duval County. John Merrett, Judge. Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr. and Richard B. Gordon, Assistant Public Defenders, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Donna A. Gerace, and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D10-5917

HAWKES, J. This is an appeal from a conviction for trespass on school grounds pursuant to section 810.097(2), Florida Statutes (2010). Defendant argues the trial court erred in denying his motion to dismiss the charge. Although the motion is not

included in the record, one of the arguments defendant raises on appeal reveals fundamental error, namely that there was no evidence showing the principal or his designee ordered him to leave school grounds. Because this was a necessary element of section 810.097(2), we reverse. Facts At trial, the State presented testimony from Deputy Michael F. LaForte of the Duval Police Department. LaForte testified he was a "school board police officer" assigned to defendant's school. As a member of the school board police, he was responsible for enforcing all state laws on school property. In particular, he could issue trespass warrants excluding people from school grounds on his own authority. LaForte testified he was not under the "command" of the school

principal and had no "connection" with the principal's office. LaForte then described the circumstances of defendant's arrest. He stated that on the date of the offense, he noticed a large group of students forming a circle in the school parking lot. Believing a fight was about to take place, he approached the group and ordered them to leave the property. It was at this time that he encountered defendant, who refused to leave. After ordering defendant to leave school grounds three times, he placed defendant under arrest. After LaForte's testimony, the State rested and the defense moved to dismiss the charge pursuant to Florida Rule of Juvenile Procedure 8.110(k). The grounds 2

of this motion, as well as the trial court's response, are not included in the record. All the record indicates is that the motion was denied. The trial court eventually found defendant guilty as charged, but withheld adjudication and imposed no penalty. Defendant now challenges the denial of his motion to dismiss. Preservation Initially, we find defendant's arguments concerning the denial of his motion to dismiss were not preserved for appellate review. When evaluating the denial of a motion to dismiss in a juvenile proceeding, an appellate court may consider only those arguments specifically raised and ruled upon during the proceedings below. See A.P.R. v. State, 894 So. 2d 282, 286 (Fla. 5th DCA 2005). Here, the record does not include the motion to dismiss. It includes only a passing reference by the State Attorney that defendant had raised a motion to dismiss and that it had been denied. Because the grounds for the motion were not included in the record, there is no way to know whether the arguments raised on appeal were considered by the trial court when it denied the motion. Therefore, we must treat the arguments raised on appeal as unpreserved. However, the defendant's arguments can still be addressed if they constitute fundamental error. "[A]n argument that all evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error

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