
    STATE v. GLADNICK.
    No. 5455.
    Circuit Court, Dade County, Criminal Appeal.
    March 5, 1964.
    Orr & Lazar and Herbert L. Kaplan, for appellant.
    Richard E. Gerstein, State Attorney, and Joan Odell Fransella, Ass’t. State Attorney, for appellee.
   JAMES W. KEHOE, Circuit Judge.

To a complaint charging that on the 20th day of November, 1962, Robert Gladniek “did then and there trespass onto the premises of another, after having been forbidden so to enter” (a violation of section 21-70 of the Code of Metropolitan Dade County and section 21-38 of the Hialeah City Code, and section 821.01 of Florida Statutes), the defendant pleaded not guilty, was convicted and sentenced.

The facts proven were that Robert Gladnick was standing on 48th Terrace between 36th Avenue and 37th Avenue in Hialeah, Florida, distributing handbills; was advised that the street was privately owned, was asked to leave, however, he remained and later was arrested by Hialeah police. 48th Terrace between 36th Avenue and 37th Avenue is privately owned — it is, however, a street generally used by the public and contains a number of business locations adjacent thereto.

Despite the legal title being privately held, it appears that the place of the alleged trespass is commonly used by the public and is, therefore, not a place where the crime of trespass can be committed as defined by Florida Statute 821.01.

The constitutional questions raised, while academically stimulating, are expressly not ruled on by this court as the foregoing alleviates the necessity of a decision thereon.

Based on the above and foregoing opinion, this cause is reversed and remanded to the lower court with directions to enter a judgment of acquittal.  