A.J.M., a child v. State of Florida , 2016 Fla. App. LEXIS 437 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
A.J.M., a child,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D14-1506
[January 13, 2016]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael J. Orlando, Judge; L.T. Case No. 14-
00533DL00A.
Carey Haughwout, Public Defender, and Jonathan Dodson, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
A sign securely affixed to the outside of a McDonald’s, by the front door,
read: “Notice: All Coral Springs police officers are authorized to advise any
person to leave these premises. Failure to leave the premises after being
instructed will result in an arrest for trespass. Florida Statutes 810.09.”
The trial court properly admitted a photograph of the sign into evidence
over appellant’s hearsay objection, because the sign amounted to a verbal
act authorizing the arresting officer to order appellant to leave the
premises.
Appellant was charged with trespass on property other than a structure
or conveyance, in violation of section 810.09(2)(b), Florida Statutes (2014),
which provides, in pertinent part:
If the offender defies an order to leave, personally
communicated to the offender by the owner of the premises or
by an authorized person . . . the offender commits a
misdemeanor of the first degree.
(emphasis added). The trespass statute defines an “authorized person” as
“any law enforcement officer whose department has received written
authorization from the owner, his or her agent, or a community association
authorized as an agent for the owner, to communicate an order to leave
the property in the case of a threat to public safety or welfare.” § 810.09(3).
A common definition of “received” is “to have something bestowed,
conferred, etc.” THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE
UNABRIDGED 1198 (1967).
A contested issue at trial was whether the arresting officer was a person
“authorized” within the meaning of section 810.09(2)(b) to order appellant
to leave the premises. To prove this element of the crime, the state offered
a photo of the sign described above. Appellant objected on hearsay
grounds. The trial judge overruled the objection. On appeal, appellant
challenges this ruling.
Hearsay is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” § 90.801(1)(c), Fla. Stat. (2014).
“A ‘declarant’ is a person who makes a statement.” § 90.801(1)(b).
The words on the sign amounted to a verbal act and not hearsay,
because they had “independent legal significance—the law attaches duties
and liabilities to their utterance.” A.J. v. State, 677 So. 2d 935, 937 (Fla.
4th DCA 1996). The words went to prove that the owner of the property
had conferred authority on all Coral Springs police officers to communicate
an order to leave the property. Like language giving consent, the words
that conferred authority on the police to act were operative once
McDonald’s securely posted them on the building. The words were not
offered for the truth of their contents. See State v. Welker, 536 So. 2d
1017, 1019-20 (Fla. 1988); Welker v. State, 504 So. 2d 802, 806 n.3 (Fla.
1st DCA 1987); Palmer v. State, 448 So. 2d 55, 56 (Fla. 5th DCA 1984).
Appellant relies upon J.G. v. State, 114 So. 3d 1078 (Fla. 2d DCA 2013),
but that case is distinguishable. J.G. was also a trespass case where an
officer’s authority was in issue; the officer vaguely testified that he was an
agent of the property owner, through “an agreement or affidavit” on file at
the substation. Id. at 1079. The second district observed that the state
provided no documentation authorizing the officer to issue trespass
warnings. The words conferring authority were never offered in evidence.
Here, the posted signed bestowed the authority required by statute.
Affirmed.
GERBER and KLINGENSMITH, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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