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.
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 access;
- 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;
If you have been charged with a trespass in Jacksonville, Florida, a Jacksonville criminal attorney may be able to assist you in contesting the charge or mitigating the possible penalties. Contact Hussein & Webber, PL today for a free consultation.