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In this blog, we look at the legal defenses for trespassing.  In the State of Florida, there are two types of criminal trespass—Trespass in Structure or Conveyance and Trespass on Property Other Than Structure or Conveyance. Fortunately, there are many defenses to a trespassing charge. Let’s take a closer look.

Trespass in Structure or Conveyance

A person is in violation of Trespass in Structure or Conveyance when they enter structure such as a building or any conveyance (mode of transport) without permission of the owner or other authorized person or if they remain after permission has been revoked.  (source)

Trespass on Property Other Than Structure or Conveyance

Definition: A person is guilty of Trespass on Property Other Than Structure or Conveyance when they willfully and without authorization enter a property that is not a structure or conveyance. For example, someone who trespasses on farmland might be considered trespassing on property that is not a structure or a conveyance. (source)

Defenses To Trespassing

There are a variety of defenses to the charges of Trespassing in Florida. Let’s take a look at some of the most common defenses.

  • You weren’t present. The most basic defense to a trespassing charge is that you did not in fact trespass. If you can present evidence that you did not trespass then you can beat a trespass charge.
  • No notice given to depart. If you were given permission to enter a property then that permission was revoked without notifying you, this may be a good defense to a trespassing charge. While it is true that a property owner can revoke permission to remain on their property even after you’ve been invited in, they need to give you notice that the permission to remain has been revoked.
  • You didn’t willfully remain or enter the property. If you have a reason that you remained on a property that was an extenuating circumstance or a situation out of your control, this may be a good defense to a trespassing charge. Discuss with your attorney since this is an area of the law that has a lot of nuance.
  • The property owner gave express or implied consent. Did the owner imply that it was okay for you to enter and/or remain on their property? For example, if the property owner is serving you dinner and chatting cheerfully with you, it might be reasonable for you to assume that they have no problem with you remaining on their property.
  • The arresting officers did not witness the crime. In the State of Florida, in order to make an arrest for trespassing, the arresting officers must have witnessed the crime. For example, if someone is accused of squatting in an empty apartment, the arresting officer must actually see that unauthorized person inside the apartment before they can make arrest.

Trespass Case Sample

In the case of Reginald L. Smith v. State of Florida, the defendant was found not guilty of trespassing because the officer did not witness the crime and because he was not given proper notice to leave the property.

As two St. Petersburg police officers were watching a twenty-four-hour-a-day convenience store from across the street, they observed Smith walking around the parking lot.   Over a ten-minute period, they saw Smith talking to patrons at the gas pumps, to people using the pay telephone and to others in the parking lot.   The officers drove over to the store.   As soon as Smith saw them approaching in their police cruiser, he went inside.   The officers followed him in, brought him back outside to the parking lot and arrested him for trespass. (source)

The court found that the parking lot did not have a “no trespassing” sign in accordance with state law therefore they had not given proper notice to the defendant. They also found that in the case of properties that are open for business, they must give a direct notice to the trespasser that they are not welcome on the property.

If you have been arrested for trespassing, there are legal defenses and factual defenses that could get your case dismissed.  Call experienced criminal defense lawyers, so we can evaluate your case and all your possible legal defenses.

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