County Criminal Court: CRIMINAL PROCEDURE --- Dismissal – Dismissal was not the appropriate remedy where police did not have authority to investigate matter because it happened on private property and there was no agreement with property owners for enforcement of traffic laws over the property. Order of dismissal reversed. State v. Antonious, No. CRC 04-53 APANO, (Fla. 6th Cir. App. Ct. Feb. 26, 2008).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

STATE OF FLORIDA

 

            Appellant,

Appeal No. CRC 04-53 APANO

UCN522004AP000053XXXXCR

v.

 

NASHAAT ANTONIOUS

 

            Appellee.

________________________________/

 

Opinion filed ________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge William Overton

 

Assistant State Attorney

Gregory Groger, Esq.

 

Brian Battaglia, Esq.

Attorney for appellee

ORDER AND OPINION

            (J. Demers)

 

            THIS MATTER is before the Court on the State’s appeal from an order of dismissal entered by the Pinellas County Court. This Court reverses the decision of the trial court.

            The defendant backed into a parked vehicle causing damage, and left without leaving any information. A police officer was called to investigate, and the defendant was ultimately charged with violating §316.1985(1) and §316.061(1). He filed a motion to dismiss, which the trial court granted. The State is appealing that decision. A trial court’s ruling on a motion to dismiss is reviewed under a de novo standard. Bell v. State, 835 So.2d 392 (Fla. 2d DCA 2003).

            The trial court dismissed the citation because the officer did not have the authority to investigate the matter because it happened on private property --- the grounds of a condominium. Pursuant to §316.006(2)(b):

A municipality may exercise jurisdiction over any private road or roads, or over any limited access road or roads owned or controlled by a special district, located within its boundaries if the municipality and party or parties owning or controlling such road or roads provide, by written agreement approved by the governing body of the municipality, for municipal traffic control jurisdiction over the road or roads encompassed by such agreement … .

 

This provision notwithstanding, the State contends that the officer had jurisdiction to police the condominium complex because it was a “street or highway” under the definition of §316.003(53). This Court disagrees. Pursuant to §316.640 of the Florida Statutes, the police have jurisdiction to enforce traffic laws on all streets and highways “wherever the public has the right to travel by motor vehicle.” §316.003(53)(a) defines a “street or highway” as: “The entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic.” Evidence was presented to the trial court showing that the property in question was not open to the public. The rule authorized the trial court to take evidence. Although there was conflicting evidence presented on this issue, the trier of fact was free to make the factual determination. Therefore, the officer had no authority to police the private property.

§316.640 and §316.003(53) draw a clear distinction between places where the public has a right to travel and private property. In each instance, the authority to enforce Chapter 316 (“The Uniform Traffic Code”) on private property where the public has no right to travel requires a written agreement with the involved municipality. There was no such written agreement in this case.

But these statutory provisions involve an enforcement issue, not an application issue. In other words, the statutes preclude enforcement of Chapter 316 on certain private property, but that does not necessarily mean that the law does not apply to citizens acting on private property. Citizens may violate certain provisions of Chapter 316 and be charged with the violation, but the municipality would not be able to go on the premises to issue citations or investigate the matter. The State has the authority to file an information charging a violation of Chapter 316 even though officers of the municipality do not have the authority to enforce those provisions. The State can proceed with such charges by interviewing witnesses and presenting evidence to the court. The involved statutory provisions are restraints on the exercise of authority by municipalities, but not on the exercise of authority by the State Attorney.

Such circumstances are not unique. Limitation of the authority of police officers has been considered in other contexts without affecting the State’s authority to file charges or the validity of the charges. Thus, where officers have gone outside their jurisdiction with no authority, the courts have specifically ruled that such improper conduct does not constitute grounds for dismissal of the charges. In fact, in State v. Filoso, 613 So.2d 69 (Fla. 4th DCA 1993), the court held that the officer’s failure to comply with the agreement between cities as authorized by statute did not affect the validity of the charge and dismissal was improper. The court relied on the decision in Darby v. State, 502 So.2d 1358 (Fla. 5th DCA 1987), rev. den., 511 So.2d 298 (Fla. 1987), where the court held that the unlawfulness of an arrest where officers were acting outside of their jurisdiction did not affect the validity of the arrest and was not grounds for dismissal. Similarly, in the case at bar, the fact that an officer went on private property and issued a citation for violating Chapter 316 without authority does not justify dismissal of the charges.

As previously noted, the trial judge’s findings that this incident took place on private property and that there was no agreement with the city for enforcement of the traffic laws on the premises, are accepted. That may indeed mean that the officer acted without authority, but it does not mean that the law did not apply to that property or that the State could not file criminal traffic charges. Although this Court has struggled with this matter, it has become apparent that the State correctly argued that dismissal was inappropriate.

            IT IS THEREFORE ORDERED that the order of dismissal is reversed, and this case is remanded to the trial court for further proceedings.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of February, 2008.

 

            __________________________                    ____________________________

                        David A. Demers                                              Robert J. Morris, Jr.

                            Circuit Judge                                                      Circuit Judge         

 

 

                                    ____________________________

                                                 Irene H. Sullivan

                                                   Circuit Judge

 

cc:    Office of the State Attorney   

         Honorable William Overton

         Brian Battaglia, Esquire