C.B.S., a child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D15-3530

_________________________/

Opinion filed February 2, 2016.

An appeal from the Circuit Court for Nassau County.

Adrian G. Soud, Judge.

Nancy A. Daniels, Public Defender, Archie F. Gardner, Jr., Assistant Public 

Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Jillian H. Reding, Assistant Attorney General, 

Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for 

Appellee.

THOMAS, J.

Appellant C.B.S. appeals the trial court’s order denying her motion for 

judgment of acquittal. Appellant was charged with the crime of trespass on 

property other than a structure or conveyance. At the hearing, Appellant moved 

for judgment of acquittal at the close of the State’s evidence on the grounds that
2

the State failed to establish she had notice not to enter the property. The State 

responded that Appellant had constructive notice not to enter due to the fencing of 

the property and the posted and visible “no trespassing” signs. The trial court

agreed with the State and denied Appellant’s motion. We must respectfully 

disagree. We conclude that the evidence failed to establish that Appellant had 

notice not to enter the property, and accordingly reverse.

On May 24, 2015, Appellant and nine other individuals were discovered on 

property owned by Belle River Timber in Nassau County. They were apprehended 

by Lt. Anthony Wright with the Florida Fish and Wildlife Commission, who issued 

Appellant a citation for trespassing.

At Appellant’s hearing, the State offered into evidence two photographs and 

the testimony of Lt. Wright. Lt. Wright testified that Appellant and the other 

trespassers entered the property at an overgrown section of the property’s tree line 

where there was no fence. One of the State’s photographs showed the entrance 

road formed by the trespassers – run-over brush and a marshy area to the right of 

the entrance road. Lt. Wright testified that the entrance road itself was natural land 

and was not built up by the trespassers. The second photograph showed a barbed 

wire fence with a “no trespassing” sign posted near the place where the trespassers 

entered the property. While Lt. Wright knew that two such signs were visibly 

posted in the area where the trespassers entered the property, he did not know how 
3

many “no trespassing” signs in total were posted on the property. Lt. Wright also 

admitted he had never before seen Appellant on the property, and he never verbally 

warned her that she could not be on the property. 

The standard of review for denial of a motion for judgment of acquittal is 

de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). When reviewing a 

motion for judgment of acquittal, the evidence is viewed in the light most 

favorable to the State. Jones v. State, 790 So. 2d 1194, 1197 (Fla. 1st DCA 2001).

The purpose of a judgment of acquittal is to test the sufficiency of the State’s 

evidence. Id. An appellate court will not reverse a conviction if it is supported by 

competent, substantial evidence. Pagan, 830 So. 2d at 803. However, if the State 

fails to present sufficient evidence to establish a prima facie case of the crime 

charged, then dismissal is proper. E.A.B. v. State, 851 So. 2d 308, 310 (Fla. 2d 

DCA 2003).

Here, Appellant was charged with the crime of trespass on property other 

than a structure or conveyance. § 810.09, Fla. Stat. (2015). To establish its prima 

facie case, the State needed to introduce evidence supporting every element of the 

charged crime. The parties agree that the only element at issue is whether 

Appellant had notice not to enter the property. The notice required by the statute 

can be accomplished in various ways, including through actual communication or 

through constructive notice by posting or fencing, as defined by section 810.011.
4

To achieve notice through actual communication, section 810.09 requires 

that notice against entering or remaining be actually communicated to the offender.

Florida courts have interpreted this requirement to necessitate that the trespasser 

receive an oral warning. See Pointec v. State, 614 So. 2d 570, 573 (Fla. 5th DCA 

1993). There is no evidence that Appellant was warned against entering or 

remaining on the property by actual communication, as Lt. Wright testified he had 

never before seen Appellant on the property, and he had never verbally warned her 

to stay off the property.

If there is no actual communication of notice, constructive notice can be 

accomplished by posting or fencing. Section 810.011 details the requirements that 

must be met for the property to be considered posted or fenced for the purpose of 

providing notice not to enter. Strict compliance with the statutory requirements is 

necessary. V.B. v. State, 959 So. 2d 1252, 1254 (Fla. 3d DCA 2007).

Under the statute, property is considered fenced if 

[the] land . . . has been 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.

For the purpose of this chapter, it shall not be necessary to fence any 

boundary or part of a boundary of any land which is formed by water.

§ 810.011(7), Fla. Stat. (2015). Here, it is clear that the property is not enclosed by 

a fence because Appellant entered onto the property in a place where there was no 

fence. While the statute makes it unnecessary to fence boundaries formed by 
5

water, the record indicates that a marshy area was on only one side of the entrance 

road created by the trespassers, and that the entrance road itself was natural land. 

Therefore, the property does not meet the legal definition of fenced land provided 

in section 810.011(7).

The property also does not meet the legal definition of posted land. For 

property to be posted in a way that would provide trespassers constructive notice, 

the posting must meet the following requirements:

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[.]

§ 810.011(5)(a)1., Fla. Stat. (2015). The case law is rife with examples of courts 

requiring strict compliance with section 810.011(5)(a)1. See In Interest of B.P., 

610 So. 2d 625, 626 (Fla. 1st DCA 1992) (holding judgment of acquittal 

improperly denied because there was no evidence the posted signs contained the 

property owner’s name); Baker v. State, 813 So. 2d 1044, 1045 (Fla. 4th DCA 

2002) (holding property was not posted in accordance with the statute because 

there was only one “no trespassing” sign in the lawn of the middle duplex); Smith 

v. State, 778 So. 2d 329, 330 (Fla. 2d DCA 2000) (holding that a convenience store 

was not posted because the sign was attached to the building rather than the lot’s 
6

boundaries). Here, there is no evidence in the record that the “no trespassing” 

signs were placed 500 feet apart along the boundary and at each corner of the 

property. Lt. Wright’s testimony and the State’s photographs showed that there 

were two signs posted near the area where the trespassers entered; however, 

Lt. Wright admitted to not knowing how many signs were on the property, and 

there is no evidence establishing that there were signs posted at the corners of the 

property. This alone demonstrates that the State failed to present evidence that the

property was posted in accordance with the statute. 

The State argues that the posting of the property also complies with a 

different section of 810.011, which allows property owners to paint notice on trees 

or posts. The State asserts that with painted notice, signs are only required where 

entry onto the property is expected or known to occur. This argument is without 

merit. Not only is there no evidence in the record that notice was painted on the 

property’s trees or posts, but also the portion of the statute the State relies on 

requires that painted notice “shall be accompanied by signs complying with 

subparagraph 1” of the statute (i.e., posted 500 feet apart, at each corner, etc.).

§ 810.011(5)(a)2.b., Fla. Stat. (2015). 

Appellant’s motion for judgment of acquittal was improperly denied because 

the evidence failed to show that Appellant had actual or constructive notice not to 
7

enter the property. Accordingly, we reverse and remand for entry of an order 

granting Appellant’s motion for judgment of acquittal. 

REVERSED and REMANDED. 

ROBERTS, C.J., and WOLF, J., CONCUR.