Definition of Criminal Trespass
The crime of trespass is defined under Sections 810.08 and 810.09 of the Florida Statutes. There are two types of criminal trespass under Florida law: (1) Trespass in Structure or Conveyance, and (2) Trespass on Property Other Than Structure or Conveyance.
(1) Trespass in Structure or Conveyance– a Trespass in Structure or Conveyance occurs when a person, without being authorized, willfully enters or remains in any structure (such as a building or dwelling) or conveyance. The offense can also apply to situations where a person, who was once authorized or licensed to enter the structure or conveyance, is warned by the owner or lessee of the premises (or an agent of the owner or lessee), to depart, and then the person refuses to do so. See Section 810.08, Florida Statutes.
To prove the crime of Trespass in Structure or Conveyance, the prosecution must establish the following elements beyond a reasonable doubt:
- the defendant willfully entered or remained in the structure/conveyance or having been authorized to enter, willfully refused to depart after being warned by the owner, lessee, or agent of the owner/lessee;
- The structure or conveyance was in the lawful possession of the person alleging the trespass;
- The entering in or remaining in the structure or conveyance by the defendant was without the permission, express or implied, of the person alleging the trespass (or his or her agent).
(2) Trespass on Property Other Than a Structure or Conveyance– this type of trespass occurs where a person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance. The elements that must be proven at trial for this offense are as follows:
- The defendant willfully entered upon or remained in the property alleged;
- The property was owned by or in the lawful possession of the person/entity claiming the trespass;
- Notice not to enter upon or remain in that property had been given by either actual communication or by posting, cultivation, or fencing on the property, and
- The defendant’s entering upon or remaining in the property was without the permission, express or implied, of the person or entity claiming the trespass or any other person authorized to give that permission. See Section 810.09, Florida Statutes.
The phrase “posted land” is legally defined as land upon which signs are placed not more than 500 feet apart along and at each corner of the property’s boundaries. The signs must prominently display (in letters not less than 2 inches high) the words “No Trespassing” and must, in smaller letters, state the owner, lessee, or occupant of the land. However, if the property is less than five acres in area, and a dwelling house is located on it, the property will automatically be treated as “posted land” even though no signs have been erected.
Type of Intent Required
A trespass must be conducted willfully, that is, the entry or remaining must be knowingly and purposely done, with general intent. Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981), decision approved, 436 So. 2d 73 (Fla. 1983). Thus, a conviction for trespass does not require that a defendant actually intend to trespass or commit a crime. It is sufficient that he or she willfully entered or remained on the property without the permission of a person authorized to deny or withdraw such permission.
Implied Invitation to Remain
Authority to enter upon or remain in property may be given by express words, or may be may be implied from the circumstances. It is lawful to enter or remain in the property of another if, under all the circumstances, a reasonable person would believe that he or she had the permission of the owner or occupant. See Fla. Std. Jury Instr. (Crim.) 13.3 (Trespass- In Structure or Conveyance).
Actual Communication to Leave
When an invitation has been extended to enter an open business, actual communication is necessary to put a person on notice that he is no longer welcome on the property and may be arrested for trespass. K.M.B. v. State, 69 So. 3d 311, 314 (Fla. 4th DCA 2011); Smith v. State, 778 So.2d 329, 331 (Fla. 2d DCA 2000) (citing Corn v. State, 332 So.2d 4, 8 (Fla.1976)).
In this regard, a police officer does not have the legal authority to conduct an investigatory stop or arrest for trespass unless the owner or his or her agent first warned the potential trespasser that he or she is no longer permitted to be present. Gestewitz v. State, 34 So. 3d 832, 834-35 (Fla. 4th DCA 2010); S.N.J. v. State, 17 So.3d 1258, 1259 (Fla. 2d DCA 2009) (stating that Florida’s criminal trespass statute “requires that notice be given before a person can be guilty of trespassing on property,” and that individuals “c[an] be legally detained for trespassing only if they were first warned to leave the property”); Rodriguez v. State, 29 So. 3d 310, 312 (Fla. 2d DCA 2009).
In the absence of evidence of proof of notice to the defendant by either the posting of the property or by actual communication, a police officer does not have probable cause to suspect a defendant of the crime of trespass. Fabian v. State, 710 So. 2d 114, 116 (Fla. 2d DCA 1998).
Designee of Property Owner
Where a person other than the actual owner or occupant gives an order to depart the property, the State must show beyond a reasonable doubt that the person giving the order to leave was an actual designee authorized to give such orders. See § 810.08(1); B.C. v. State, 70 So. 3d 666 (Fla. 1st DCA 2011).
Penalties for Trespass
A Trespass in Structure or Conveyance is typically charged as a second degree misdemeanor, punishable by up to sixty days in jail. However, if a person is present in the structure where the trespass occurs, then trespass is considered a first degree misdemeanor, punishable by up to one year in jail. If the offender is armed with a firearm or other dangerous weapon, then the trespass can be charged as a third degree felony with a five year maximum prison term.
A Trespass on Property Other Than a Structure or Conveyance is a first degree misdemeanor, punishable by up to one year in jail. However, if the offender carries a firearm or other dangerous weapon, the violation can be charged as a third degree felony with a maximum term of imprisonment of up to 5 years.
Defenses to Trespass
There are multiple legal defenses available to contest a charge of Trespass in Florida. Some of the most common defenses include the following:
- Factual or evidentiary disputes as to the alleged trespasser’s presence;
- No actual communication to depart the premises, once invited;
- The defendant’s entry on to or remaining on the subject property was not wilful;
- Express invitation to enter or remain;
- Implied Invitation to enter or remain;
- Withdrawal of request to leave the premises;
- Alleged victim lacks standing or authority to deny or withdraw permission to be present;
- Agent of property owner lacked authority to order removal or bar entry;
- Lack of notice;
- Notice not properly posted;
- Lack of communication to leave or not enter;
- Conflicting communications given to the accused;
Case Example- Criminal Trespass
State vs. D.A. (Fourth Judicial Circuit, Palm Beach County, Florida) (2014)– Our client was charged with Trespass in a Structure or Conveyance after allegedly refusing to leave a strip club upon warning by police. The incident arose when our client was asked to pay a bar tab for a friend who had ordered several drinks. Our client was asked by management to “pay the tab, and then leave the premises.” This instruction was repeated to police, who arrived shortly after the friend failed to pay the bill.
Upset that police had been called and suspicious of the tab amount, our client told police that “this is bullshit.” The arresting officer then advised that our client would have one final opportunity to pay, or else he would “go to jail for trespass.” Our client then told the officer to go “f**** yourself,” at which point he was placed under arrest.
After conducting depositions of the arresting officer and interviewing management, our attorneys filed a Motion to Dismiss on grounds that the undisputed facts did not amount to a prima facie case of guilt for trespass. First, management had extended an implied invitation to remain on the premises for purposes of paying the tab. The instruction was for our client to remain, and leave only upon the payment of the bar tab.
Second, the implied invitation had never been withdrawn by management, and there was no specification given as to the timeframe in which the tab could be paid. Thus, there was no actual communication to then and there depart the premises.
Lastly, the arresting officer was never given the authority to act as a designee with powers beyond those actually communicated by management. The arresting officer therefore lacked the authority to the order the removal of our client until such time as the tab had been paid.
Outcome: Motion granted. All charges dismissed.
Contact an Attorney
There are many defenses available to contest a charge of trespass, and an attorney is critical to avoiding or minimizing the consequences of a conviction. No person should attempt to resolve their case without first consulting with a qualified criminal lawyer. If you have been charged with Criminal Trespass in West Palm Beach, Palm Beach County, Broward County, Martin County, or St. Lucie County Florida, contact attorney Steven Sessa for a free consultation.