D.M.T., A JUVENILE v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: July 5, 2023
• Docket: 22-0781
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 5, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-0781 Lower Tribunal No. 19-0160 ________________

D.M.T., a juvenile, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Orlando A. Prescott, Judge.

Carlos J. Martinez, Public Defender, and Nicholas A. Lynch, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for appellee.

Before LOGUE, C.J., and LINDSEY, and MILLER, JJ.

LINDSEY, J. Appellant D.M.T., a juvenile, appeals from a final order withholding

adjudication of delinquency and placing him on probation for trespassing in

a school safety zone in violation of § 810.0975(2)(b), Florida Statutes (2022).

D.M.T.’s primary argument on appeal is that the statute is unconstitutionally

vague. Because the record reflects that D.M.T. had reasonable, advance

notice that his actions violated the statute, we hold that D.M.T. lacks standing

to bring a vagueness challenge. We therefore affirm.

I. BACKGROUND

In January 2019, D.M.T. was riding his bicycle across the street from

his school during school hours when a school resource officer recognized

him. The officer knew that D.M.T. had been suspended and that he was

supposed to be at a suspension location away from the school. Moreover,

the officer had given D.M.T. a written trespass warning four days before.

When the officer called D.M.T. over, D.M.T. fled. The officer found D.M.T.

in a park near the school and arrested him.

D.M.T. was charged by petition for delinquency with violating §

810.0975(2)(b), which prohibits trespass within a school safety zone:

(b)1. During the period from 1 hour prior to the start of a school session until 1 hour after the conclusion of a school session, it is unlawful for any person to enter the premises or trespass within a school safety zone or to remain on such premises or within such school safety zone when that person

2 does not have legitimate business in the school safety zone or any other authorization, license, or invitation to enter or remain in the school safety zone.

D.M.T. moved to dismiss on the basis that the school safety zone

statute is unconstitutionally vague because it does not define the term

“legitimate business” and therefore fails to give reasonable notice of the

proscribed conduct. The lower court denied D.M.T.’s motion to dismiss, and

the case proceeded to an adjudicatory hearing.

At the hearing, the school principal testified that on the day of D.M.T.’s

arrest he was not allowed to be at the school because he was serving a

suspension. The principal further testified that when she issued the

suspension, she met with D.M.T. and his parents to inform them of the

conditions. During the suspension, D.M.T. was supposed to be at a

suspension location away from the school. D.M.T. was also told to stay 100

feet away from campus and specifically to stay away from school sidewalks

and sidewalks across the street.

The State asked the principal if D.M.T. indicated he understood the

conditions of his suspension. The principal answered in the affirmative.

Defense counsel objected to this testimony on the basis that it amounted to

a statement by D.M.T. that should have been disclosed in discovery. The

lower court agreed there had been a discovery violation and conducted a

3 Richardson inquiry. 1 Following its Richardson inquiry, the court determined

that the discovery violation did not cause prejudice.

The school resource officer also testified at the hearing. The officer

testified that he caught D.M.T. trespassing on school property when D.M.T.

was supposed to be at a suspension location away from the school. The

officer took D.M.T. to a school administrator and contacted D.M.T.’s parents

to come pick him up. Four days later, the officer saw D.M.T. across the street

from the school on his bike during school hours. D.M.T. was arrested and

charged with violating the school safety zone statute, § 810.0975(2)(b).

At the close of the State’s case, defense counsel moved for judgment

of dismissal and renewed her pretrial objection that § 810.0975(2)(b) is

unconstitutionally vague. The court denied the motion based on the following

observations:

The testimony is that he was notified of the suspension, and then 4 days before this incident, he was back on school property. He was notified again, but he was not charged, but he was notified again, and then . . . when the officer saw him 30 feet away, across the street, approximately 30 feet away from the real property, the Court notes that he did not

1 See State v. Jones, 321 So. 3d 354, 359 (Fla. 3d DCA 2021) (“A proper Richardson inquiry requires the lower court to address ‘whether the [discovery] violation was inadvertent or willful, trivial or substantial, and whether it caused prejudice or harm to the opposing party.’” (quoting Comer v. State, 730 So. 2d 769, 774 (Fla. 1st DCA 1999))).

4 come onto the property to attempt to enter the school for a legitimate reason.

The trial court found D.M.T. guilty of trespass within a school safety

zone in violation of § 810.0975(2)(b), withheld adjudication, and placed

D.M.T. on probation. D.M.T. timely appealed.

II. ANALYSIS

D.M.T.’s primary argument on appeal is that § 810.0975(2)(b) is

unconstitutionally vague. D.M.T. also contends the trial court erred in

admitting the school resource officer’s collateral crimes testimony about

D.M.T.’s prior trespass and that the trial court’s Richardson inquiry

improperly placed the burden on the defense to establish prejudice. We

address each argument in turn.

a. Vagueness

D.M.T. argues that § 810.0975(2)(b) is unconstitutionally vague

because it requires a person to have “legitimate business in the school safety

zone” but does not define “legitimate business.” This undefined phrase,

D.M.T. contends, fails to give adequate notice of the conduct that is

prohibited or required. See O.P-G. v. State, 290 So. 3d 950, 957 (Fla. 3d

DCA 2019) (“A fundamental principle in our legal system is that laws which

regulate persons or entities must give fair notice of conduct that is forbidden

5 or required.” (quoting F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239,

253 (2012))).

Before we address the merits of D.M.T.’s vagueness challenge,

controlling case law requires us to first determine whether he “has standing

to raise this challenge by examining his conduct in the record before us.”

See J.L.S. v. State, 947 So. 2d 641, 646 (Fla. 3d DCA 2007) (citing State v.

Brake, 796 So. 2d 522 (Fla. 2001); Dickerson v. State, 783 So. 2d 1144 (Fla.

5th DCA 2001)). “[T]he traditional rule is that a person to whom a statute

may constitutionally be applied lacks standing to challenge that statute on

the ground that it may conceivably be applied unconstitutionally to others in

situations not before the court.” Id. “If the record demonstrates that the

[defendant] engaged in some conduct clearly proscribed by the plain and

ordinary meaning of the statute, then he cannot successfully challenge it for

vagueness nor complain of its vagueness as applied to the hypothetical

conduct of others.” Id. (quoting Sieniarecki v. State, 756 So. 2d 68, 74 (Fla.

2000)).

In J.L.S., this Court considered a similar constitutional vagueness

challenge to Florida’s school safety zone statute. The relevant facts were as

follows:

J.L.S., a juvenile and student at Douglas MacArthur High School North, was spotted walking

6 through Miami Central High School’s (“Central”) safety zone at 7:25 a.m. on a school day by a police officer. On two prior separate occasions, J.L.S. had been warned not to return to Central’s school safety zone. J.L.S. was arrested and a petition of delinquency was filed charging him with one count of trespass within a school safety zone in violation of Section 810.0975(2), Florida Statutes . . . .

Id. at 643.

J.L.S. challenged the facial validity of the statute, arguing it was

impermissibly vague. Id. at 646. This Court concluded, based on J.L.S.’s

conduct and the circumstances surrounding his arrest, that he lacked

standing:

We conclude that J.L.S. lacks standing in this case to raise a facial vagueness challenge to the statute with respect to the hypothetical conduct of others because his own actions fell within the statute’s proscriptions. That is to say that at the time of his arrest, J.L.S. was committing a trespass after warning. He knew that he was in the school’s safety zone at a proscribed hour and that his authorization to enter and/or remain in the safety zone had previously been revoked. Thus, not only is this statute not unconstitutional as applied in this case, but the appellant also lacks standing to raise a facial vagueness challenge.

Id.

Based on the record before us, we similarly conclude that §

810.0975(2)(b) constitutionally applies to D.M.T.; therefore, he lacks

standing to challenge the statute as unconstitutionally vague. D.M.T.

7 contends that the statute “fails to apprise ordinary people that they can be

incarcerated for ostensibly innocent conduct—like riding a bicycle too close

to school property.”2 But the record reflects that D.M.T. was not arrested for

simply riding his bike near school property.

It is undisputed that at the time of his arrest, during school hours,

D.M.T. was serving a suspension. The school principal had informed D.M.T.

he could not be at the school or within 100 feet of the school—including the

sidewalk across from the school—during his suspension. The principal also

told D.M.T. he was required to attend a suspension center away from the

school. Further, four days before D.M.T. was arrested, the school resource

officer caught D.M.T. trespassing on school property and truant from the off-

2 D.M.T. relies heavily on Gray v. Kohl, 568 F. Supp. 2d 1378 (S.D. Fla. 2008). In Gray, members of Gideons International were arrested and charged with violating § 810.0975(2) for passing out Bibles on a public sidewalk near a school. Id. at 1385. The Gideons challenged the facial validity of Florida’s School Safety Zone Statute in federal court. Id. The court held that the statute “is unconstitutionally vague because it does not provide citizens of ordinary intelligence with reasonable notice of the types of acts that the statute criminalizes.” We do not reach this issue here because the record reflects that D.M.T. lacks standing based on the prior warnings he received, which gave him reasonable, advance notice that he was not permitted to be at or near the school while he was suspended. Moreover, we are not bound by Gray. See Meinecke v. State, 351 So. 3d 1196, 1201 (Fla. 2d DCA 2022) (declining to adopt Gray’s vagueness analysis (quoting Taylor v. State, 120 So. 3d 540, 552 (Fla. 2013) (“[A] federal district or appeals court ruling that a Florida statute is unconstitutional is not binding on [Florida state] [c]ourt[s].”))). We are, however, bound by our decision in J.L.S., which requires the standing analysis we have employed here.

8 campus suspension center. The officer gave D.M.T. a written warning and

once again informed him to stay away from the school during his suspension.

It is clear from the record that D.M.T. had reasonable, advance notice

that he was not permitted to be at or on the sidewalks across from the school

while he was suspended. D.M.T. also had notice he was supposed to be at

an off-campus suspension center during school hours. Therefore, based on

the record before us, we conclude D.M.T. lacks standing to challenge the

school safety zone statute as unconstitutionally vague. Cf. J.L.S., 947 So.

2d at 646 (“[A]t the time of his arrest, [defendant] was committing a trespass

after warning. He knew that he was in the school’s safety zone at a

proscribed hour and that his authorization to enter and/or remain in the safety

zone had previously been revoked. Thus, not only is this statute not

unconstitutional as applied in this case, but the appellant also lacks standing

to raise a facial vagueness challenge.”).

b. The Prior Trespass

D.M.T. argues the trial court erred in admitting the school resource

officer’s testimony about the prior trespass because it was irrelevant

collateral crimes evidence. We disagree. Evidence of collateral crimes “is

inadmissible when the evidence is relevant solely to prove bad character or

propensity.” § 90.404(2)(a), Fla. Stat. (2022). But collateral crimes evidence

9 “is admissible when relevant to prove a material fact in issue, including, but

not limited to, proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident . . . .” Id.

Before the adjudicatory hearing, the State disclosed that it would be

“asking the officer to testify as to a trespass warning that was given to the

Respondent 4 days prior to this incident.” The State further explained that

the purpose of this testimony “will go towards the knowledge of the fact that

he was not supposed to be on school property during his suspension

because he was provided with additional warning on the 4 days prior to that.”

In response, defense counsel stated, “I wouldn’t necessarily have an

objection to him discussing the trespass – that there was a warning given.”

However, during the adjudicatory hearing, defense counsel raised the

following general objection throughout the officer’s testimony, including his

testimony about the trespass warning: “Objection, hearsay, relevance.” The

trial court overruled the objection and permitted the officer to testify.

Defense counsel also raised a relevance objection, which the trial court

sustained, when the officer testified that D.M.T. had resisted an officer

without violence:

[THE OFFICER:] He ignored me and fled on his bike, which is really resisting an officer without violence because I called him over. I said, ‘You’re trespassing, come here.’ –.

10 [DEFENSE COUNSEL]: Objection, relevance.

[TRIAL JUDGE]: Sustained, because he’s not charged with that. That’ll be disregarded by the Court. So, next thing.

At the conclusion of the officer’s testimony, the trial judge went back to

clarify the collateral crimes objections:

[TRIAL JUDGE]: Okay, for clarification, when the testimony was about when he called to the young man and the young man fled, and he started talking about resisting an officer without violence, I said that would not be considered by the Court, any other alleged violations, because it’s not charged here.

Neither the State nor Defense counsel had anything further to add, and the

officer was excused.

We review the trial court’s determination to admit the officer’s

testimony about the prior trespass under the abuse of discretion standard.

See, e.g., Mitchell v. State, 306 So. 3d 255, 257 (Fla. 3d DCA 2020) (“The

admissibility of collateral crimes evidence ‘is within the discretion of the trial

court and its determination shall not be disturbed absent an abuse of that

discretion.’” (quoting LaMarca v. State, 785 So. 2d 1209, 1212 (Fla. 2001))).

11 As an initial matter, it does not appear that D.M.T.’s collateral crimes

argument is preserved for appellate review. 3 See Sunset Harbour Condo.

Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (“In order to be preserved

for further review by a higher court, an issue must be presented to the lower

court and the specific legal argument or ground to be argued on appeal or

review must be part of that presentation if it is to be considered preserved.”

(quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985))).

Below, when defense counsel was given notice of the State’s intention

to ask the officer to testify about the prior trespass, defense counsel did not

object. And although defense counsel raised a general objection to the

officer’s testimony during the adjudicatory hearing, counsel failed to raise the

specific argument that the officer’s testimony about the prior trespass was

improper collateral crimes evidence when the trial judge asked if there were

“any other alleged violations, because it’s not charged here” at the

conclusion of the officer’s testimony.

But even assuming D.M.T.’s argument is preserved, we are unable to

conclude that the trial court abused its discretion because the officer’s

testimony about the prior trespass was not used to prove bad character or

3 D.M.T. has not filed a reply brief, and therefore, does not contest the State’s argument that his collateral crimes argument is unpreserved.

12 propensity. See § 90.404(2)(a) (“Similar fact evidence of other crimes,

wrongs, or acts . . . is inadmissible when the evidence is relevant solely to

prove bad character or propensity.”). Instead, the testimony was relevant to

show that D.M.T. received prior notice that he could not be at the school

during his suspension and that he was supposed to be at an off-campus

suspension location. See id. (“Similar fact evidence of other crimes, wrongs,

or acts is admissible when relevant to prove a material fact in issue,

including, but not limited to, proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident . . . .”); see also

Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 404.13 (2022 ed.) (“If a

defendant contends that he or she was unaware that a criminal act was being

committed, evidence that the defendant acted similarly in the past is

admissible to prove that the defendant possessed the necessary knowledge

at the time in question.”).

c. The Trial Court’s Richardson Inquiry

Finally, we briefly address D.M.T.’s argument that the trial court’s

Richardson inquiry erroneously placed the burden on the defense to

establish prejudice. D.M.T. did not raise this objection below; it is therefore

not preserved for appellate review. See, e.g., Nixon v. State, 572 So. 2d

1336, 1341 (Fla. 1990) (“The requirement of a contemporaneous objection

13 is based on practical necessity and basic fairness in the operation of the

judicial system. A contemporaneous objection places the trial judge on notice

that an error may have been committed and thus, provides the opportunity

to correct the error at an early stage of the proceedings.”). 4

III. CONCLUSION

Because the record reflects that D.M.T. had reasonable, advance

notice that his actions violated the school safety zone statute, D.M.T. lacks

standing to bring his vagueness challenge. See J.L.S., 947 So. 2d 641. We

further conclude that D.M.T. is not entitled to relief based on his arguments

that the trial court improperly relied on collateral crimes evidence and

conducted an improper Richardson inquiry. Accordingly, we affirm.

Affirmed.

4 D.M.T. does not argue this unpreserved issue constitutes fundamental error. See § 924.051(3), Fla. Stat. (2022) (“An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error.”).