St. Petersburg Trespass Defense Attorney

Trespass Generally

Trespass is a lesser included offense of burglary. As indicated above, what separates a burglary from a trespass in Florida is that the former requires proof of intent to commit a crime at the time unlawful entry is made into a dwelling, structure, or conveyance, whereas the latter does not. Trespass in a structure (such as a detached garage or shed) or in a conveyance (a car or boat) constitutes a misdemeanor of the second degree. A second degree misdemeanor is punishable by up to sixty days in jail and/or six months of probation (the total sentence cannot exceed six months). Trespass on property other than a structure or conveyance, such as the unenclosed cartilage of a dwelling is a misdemeanor of the first degree. A first degree misdemeanor is punishable by up to a year in jail and/or a year of probation (the total sentence cannot exceed one year). If, in either instance, the accused person is armed with a firearm or other dangerous weapon, or becomes armed, the offense is a third degree felony. A third degree felony is punishable by up to five years in state prison.

A person may also be prosecuted for a third degree felony if the property trespassed upon is any one of the following: (1) a construction site; (2) commercial property for horticultural products; (3) a designated agricultural site for testing and research purposes; (4) a domestic violence center; or (5) a designated agricultural chemicals manufacturing facility. Specific warnings must be posted by the owner as a condition precedent to felony prosecution under any of the foregoing circumstances.

Florida has also enacted trespass laws that are specific to schools. Trespassing on school property, by a person with no legitimate business, or a student under suspension or expulsion, is a second degree misdemeanor. If the person has been warned by the principal and either enters or remains on school property, the offense is a first degree misdemeanor. It is a felony of the third degree if the person is in possession of a firearm or a weapon at the time the crime is committed. This section details each of the trespassing crimes recognized in Florida, including the specific conduct proscribed, posting requirements by the owner, and the elements of each offense which the state must prove beyond a reasonable doubt. Specific questions should be directed to an experienced St. Petersburg criminal defense lawyer.

Applicable Florida Statutes

The following is a list of the various trespass statutes in the state of Florida, including the degree of offense:

• Florida statute section section 810.08 (trespass in a structure or conveyance):

(1) Whoever, without being authorized,licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.

(2)(a) Except as otherwise provided in this subsection, trespass in a structure or conveyance is a misdemeanor the second degree, punishable as provided in s. 775.082 or s. 775.083. (b) If there is a human being in the structure or conveyance at the time the offender trespassed, attempted to trespass,or was in the structure or conveyance, the trespass in a structure or conveyance is a misdemeanor of the first degree, punishable as provided in s. 775.082 or 775.083. (c) If the offender is armed with a firearm or other dangerous weapon, or arms himself or herself with such while in the structure or conveyance, the trespass in a structure or conveyance is a third degree felony, punishable as provided in s. 775.082, s. 775.083 or s. 775.084. Any owner or person authorized by the owner may, for prosecution purposes, take into custody and detain, in a reasonable manner, for a reasonable length of time, any person when he or she reasonably believes that a violation of this paragraph has been or is being committed, and he or she reasonably believes that the person to be taken into custody and detained has committed or is committing the violation. In the event a person is taken into custody, a law enforcement officer shall be called as soon as is practicable after the person has been taken into custody. The taking into custody and detention of such person, if done in compliance with the requirements of this paragraph, shall not render such person criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.

(3) As used in this section, the term "person authorized" means any owner or lessee, or his or her agent, or any law enforcement officer whose department has received written authorization from the owner or lessee, or his or her agent, to communicate an order to depart the property in the case of a threat to public safety or welfare.

• Florida statute section 810.09 (trespass on property other than structure or conveyance):

(1)(a) A person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance: 1. As to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation as described in 810.011; or 2. If the property is the unenclosed curtilage of dwelling and the offender enters or remains with the intent to commit an offense thereon, other than the offense of trespass, commits the offense of trespass on property other than a structure or conveyance. (b) As used in this section, the term "unenclosed curtilage" means the unenclosed land or grounds, and any outbuildings, that are directly and intimately adjacent to and connected with the dwelling, and necessary, convenient, and habitually used in connection with that dwelling.

(2)(a) Except as provided in this subsection, trespass on property other than a structure or conveyance is misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (b) If the offender defies an order to leave, personally communicated to the offender by the owner of the premises or by an authorized person, or if the offender willfully opens any door, fence, or gate or does any act that exposes animals, crops, or other property to waste, destruction, or freedom; unlawfully dumps litter on the property; or trespasses on property other than a structure or conveyance, the offender commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (c) If the offender is armed with a firearm or other dangerous weapon during the commission of the offense of trespass on property other than structure or conveyance, he or she is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s 775.084. Any owner or person authorized by the owner may, for prosecution purposes, take into custody and detain, in a reasonable manner, for a reasonable length of time, any person when or she reasonably believes that a violation of this paragraph has been or is being committed, and that the person to be taken into custody and detained has committed or is committing the violation. If a person is taken into custody, a law enforcement officer shall be called as soon as is practicable after the person has been taken into custody. The taking into custody and detention in compliance with the requirements of this paragraph does not result in civil or criminal liability for false arrest, false imprisonment, or unlawful detention. (d) The offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083 or s. 775.084, if the property trespassed is a construction site that is: 1. Greater than 1 acre in area and is legally posted and identified in substantially the following manner: "This area is a designated construction site, and anyone who trespasses on this property commits a felony."; or 2. One acre or less in area and is identified with a sign that appears prominently, in letters not less than two inches in height, and reads in substantially the following manner: "This area is a designated construction site, and anyone who trespasses on this property commits a felony." The sign shall be placed at the location on the property where the permits for construction are located. For construction sites of 1 acre or less as provided in this subparagraph, it shall not be necessary to give notice by posting as defined in 810.011(5). (e) The offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property trespassed upon is commercial horticulture property and the property is legally posted and identified in substantially the following manner: "This area is designated commercial property for horticultural products, and anyone who trespasses on this property commits a felony." (f) The offender commits a felony of the third degree, punishable as provided in s. 775.082. s. 775.083, or s. 775.084, if the property trespassed upon is an agricultural site for testing or research purposes that is legally posted and identified in substantially the following manner: "This area is a designated agricultural site for testing or research purposes, and anyone who trespasses on this property commits a felony." (g) The offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property trespassed upon is a domestic violence center certified under s. 39.905 which is legally posted and identified in substantially the following manner: "This area is a designated restricted site and anyone who trespasses on this property commits a felony". (h) Any person who in taking or attempting to take any animal described in s. 379.101(19) or (20), or in killing, attempting to kill, or endangering any animal described in s. 585.01(13) knowingly propels or causes to be propelled any potentially lethal projectile over or across private land without authorization commits trespass, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. For purposes of this paragraph, the term "potentially lethal projectile" includes any projectile launched from any firearm, bow, crossbow, or similar tensile device. This section does not apply to any governmental agent or employee acting within the scope of his or her official duties. (i) The offender commits a felony of the third degree, punishable as provided in s.775.082, s. 775.083, or s. 775.084, is an agricultural chemicals manufacturing facility that is legally posted and identified in substantially the following manner: "This area is a designated agricultural chemicals manufacturing facility, and anyone who trespasses on this property commits a felony".

(3) As used in this section, the term "authorized person" or "person authorized" means any owner, his or her agent, or a community association authorized as an agent for the owner, or any law enforcement officer whose department has received written authorization from the owner, his or her agent, or a community association authorized as an agent for the owner, to communicate an order to leave the property in the case of a threat to public safety or welfare.

• Florida statute section 810.095 (trespass on school property with a firearm or other weapon prohibited):

(1) It is a felony of third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084 for a person who is trespassing upon school property to bring onto, or to possess on, such property any weapon as defined in s. 790.001(13) or any firearm.

(2) As used in this section, "school property" means the grounds or facility of any kindergarten, elementary school, middle school, junior high school, secondary school, career center, or post secondary school, whether public or non-public.

• Florida statute section 810.097 (trespass upon grounds or facilities of a school; penalties; arrest):

(1) Any person who: (a) Does not have legitimate business on the campus or any other authorization, license, or invitation to enter or remain upon school property; or (b) Is a student currently under suspension or expulsion; and who enters or remains upon the campus or any other facility owned by any such school commits a trespass upon the grounds of a school facility and is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Any person who enters or remains upon the campus or other facility of a school after the principal of such school, or his or her designee, has directed such person to leave such campus pr facility or not to enter upon the campus or facility, commits a trespass upon the grounds of a school facility and is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(3) The chief administrative officer of a school, or any employee thereof designated by the chief administrative officer to maintain order in such campus or facility, who has probable cause to believe that a person is trespassing upon school grounds in violation of this section may take such person into custody and detain him or her in a reasonable manner for a reasonable length of time pending arrival of a law enforcement officer. Such taking into custody and detention by an authorized person does not render that person criminally or civilly liable for false arrest, false imprisonment, or unlawful detention. If a trespasser is taken into custody, a law enforcement officer shall be called to the scene immediately after the person is taken into custody.

(4) Any law enforcement officer may arrest either on or off the premises and without warrant any person the officer has probable cause for believing has committed the offense of trespass upon the grounds of a school facility. Such arrest shall not render the law enforcement officer criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.

(5) As used in this section, the term "school" means the grounds or any facility of any kindergarten, elementary school, middle school, junior high school, or secondary school, whether public or non-public.

Applicable Jury Instructions

The following is a list of each element of the various trespasses, which the state must prove as a condition precedent to a finding of guilt.

• Florida standard jury instruction 13.3 (Trespass in structure or conveyance) provides as follows:

To prove the crime of trespass in a [structure][conveyance], the State must prove the following three elements beyond a reasonable doubt:

Give a. for trespass and/or b. for trespass after warning to depart.

a. (1) (Defendant) willfully entered or remained in a [structure][conveyance].

(2) The [structure][conveyance] was in the lawful possession of (person alleged).

(3) (Defendant's) entering or remaining in the [structure][conveyance] was without authorization, license, or invitation, by (person alleged) or any other person authorized to give that permission.

b. 1. (Defendant) had been authorized, licensed, or invited to enter or remain in a [structure][conveyance].

2. [The owner][The lessee][A person authorized by the owner or lessee] of the premises warned (defendant) to depart.

3. (Defendant) refused depart.

• Florida standard jury instruction 13.4 (trespass on property other than structure or conveyance) provides as follows:

To prove the crime of trespass on property other than a structure or conveyance, the state must prove the following four elements beyond a reasonable doubt:

(1) (Defendant) willfully entered upon or remained in property other than a structure or conveyance.

(2) The property was [owned by][in the lawful possession of] (person alleged).

(3)Give on of the of the following paragraphs, as applicable.

Give if § 810.09(1)(a)(1) is charged.

Notice not to enter upon or remain in that property had been given by [[actual communication to the defendant][posting][fencing][cultivation] of the property in the manner defined in this instruction]].

Give if § 810.09(a)(2) is charged.

The property was the unenclosed cutrilege of a dwelling and (defendant) entered or remained with the intent to commit a crime thereon other than trespass.

(4) (Defendant's) entering upon or remaining in the property was without authorization, license, or invitation from (person alleged) or any other person authorized to give that permission.

Authority to enter upon or remain in property need not be given in express words. It may be implied from the circumstances. It is lawful to enter upon 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.

• Florida standard jury instruction 13.5 (trespass on school property with a firearm or weapon) provides as follows:

To prove the crime of trespass on school property with a [firearm][weapon], the state must prove the following three elements beyond a reasonable doubt:

(1) (Defendant) [entered][remained] on school property.

Give 2a, 2b, or 2c as applicable.

(2) a. (Defendant) did not have any legitimate business on the school property or any other authorization, license, or invitation to enter upon the school property.

b. (Defendant) had been authorized, licensed or invited to enter the school property but then refused to depart when told to do so by [the principal][the principal's designee].

c. (Defendant) was a student under suspension or expulsion at the time he or she [entered][remained] on the school property.

3. At the time (defendant) was on the school property, he or she brought onto or was in possession of a [firearm][weapon].

• Florida standard jury instruction 13.5(a)(trespass on school grounds or facilities) provides as follows:

To prove the crime of trespass on school grounds or facilities, the state must prove the following two elements beyond a reasonable doubt:

Give 1a or 1b as applicable.

1. a. (Defendant) entered or remained on the campus of (school name).

b. (Defendant) entered or remained on (facility name) owned by (school name).

Give 2a or 2b as applicable.

a. (Defendant) did not have any legitimate business on the campus or any other authorization, license, or invitation to enter or remain upon school property.

b. (Defendant) was a student under suspension or expulsion at the time he or she entered or remained on the campus or any other facility owned by a school.

• Florida standard jury instruction 13.5(b) (trespass on school grounds or facilities after warning by principal or desginee) provides as follows:

To prove the crime of trespass on school grounds or facilities after warning by principal or designee, the state must prove the following two elements beyond a reasonable doubt:

(1) (Defendant) entered or remained on the campus or any facility of (school name).

(2) The principal or his or her designee [told or directed the defendant to leave the campus or facility] of school name.