West Palm Beach trespass lawyer
Trespass is generally a misdemeanor in Florida. It is a specific intent crime, meaning you must have the criminal intent to commit trespass. There are different crimes of trespass in Florida. Trespass in a structure or conveyance (an outbuilding, car, boat), trespass on property other than a structure or conveyance (usually land) and trespass on school grounds. This page discusses the elements (what the State of Florida has to prove for trespass, defenses (how to beat a trespass charge) and enhancements (armed, dangerous weapon). Let's start with the most common defense to a trespass on property other than a structure or conveyance (usually land) – lack of notice.
How can I beat a Florida trespass charge? Defenses to trespass – lack of proper notice on land
Many trespass charges can be defended via the notice requirement. Posting requirements many times are not done per Florida statute. If the property owner or lessee does not follow these requirements to the "T", that is a valid defense to certain trespass charges.
-Signs have to be not more than 500 feet apart along and at each corner of the property's boundaries.
-The signs must prominently state, in letters not less than two inches high, the words "No Trespassing."
-The signs also must state, with smaller letters being acceptable, the name of the owner or lessee or occupant of the land.
-The signs must be placed so as to be clearly noticeable from outside the boundary lines and corners of the property.
-If the property is less than five acres in area, and a dwelling house is located on it, it should be treated as posted land even though no signs have been erected.
There may be serious gaps in the fencing or cultivation of the property.
The fence has to be at least 3 feet high. It has to be a fence of substantial construction. Cultivated land is land that has been cleared of its natural vegetation, and at the time of the trespass was planted with trees, a crop, an orchard or a grove, or was a pasture.
What does the State of Florida have to prove to get a conviction for trespass of a structure or conveyance?
It depends if the allegation is a traditional trespass or a trespass after you were told to leave (you were first invited on the property, and then told to leave).
To prove the crime of Trespass in a structure or conveyance, the State must prove:
-Defendant willfully entered or remained in a structure or conveyance.
-The structure or conveyance was in the lawful possession of the owner.
-Defendant’s entering or remaining in the structure or conveyance was without authorization, license, or invitation by the owner or any other person authorized to give that permission.
If the trespass is one where you were first invited on the property, but then told to leave, the State has to prove:
-Defendant had been authorized, licensed, or invited to enter or remain in a structure or conveyance.
-The owner or the lessee or a person authorized by the owner or lessee of the premises warned defendant to depart.
-Defendant refused to depart.
Implied authority to enter or remain in a structure or conveyance
A grey area in the law of trespass is whether there was implied authority for the Defendant to enter or remain in the structure or conveyance. The owner or lessee does not need to tell you specifically that you can come in or remain in the structure or conveyance. Authority to enter or remain in a structure or conveyance may be implied. The issue is whether a reasonable person would believe that he had the permission of the owner or occupant.
Who is an authorized person for purposes of telling you to leave?
A person authorized means the person who owns or rents the property or his agent or any cop who has written authorization to tell you to leave in case of a threat to public safety or welfare.
What does willfully mean?
Willfully means intentionally, knowingly, and purposely.
What is a structure for purposes of a trespass of a structure charge in Florida?
Structure means any building of any kind, either temporary or permanent, that has a roof over it, and the enclosed space of ground and outbuildings immediately surrounding that structure.
What is a conveyance for purposes of a trespass of a conveyance charge in Florida?
Conveyance means any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car; and to enter a conveyance includes taking apart any portion of the conveyance.
What is a trespass of a structure or conveyance while armed?
It is a simple trespass of a structure or conveyance as discussed above plus the defendant was armed or armed himself with a firearm or other dangerous weapon during the trespass.
A "dangerous weapon" is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm. A "firearm" is any weapon, including a starter gun, which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.
What if the trespass was on property other than a structure or conveyance?
This is commonly a trespass on land.
What does the State have to prove for the crime of trespass on property other than a structure or conveyance?
The State must prove:
-Defendant willfully entered upon or remained in property other than a structure or conveyance.
-The property was owned by or in the lawful possession of a certain person.
-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.
Another scenario for trespass on property other than a structure or conveyance is where the property was the unenclosed curtilage of a dwelling and the defendant entered or remained with the intent to commit a crime there other than trespass.
Lastly, another scenario for trespass on property other than a structure or conveyance is where the Defendant’s entering upon or remaining in the property was without authorization, license, or invitation from the owner or any other person authorized to give that permission.
What is the unenclosed curtilage of a dwelling in Florida?
Unenclosed curtilage of a dwelling 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.
What is a Dwelling?
Dwelling means a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night.
What is notice not to enter a property by cultivation of the property in Florida?
Notice not to enter property may be given by cultivation of the property. "Cultivated land" is land that has been cleared of its natural vegetation, and at the time of the trespass was planted with trees, a crop, an orchard or a grove, or was a pasture.
What is notice not to enter a property by fencing the property in Florida?
Notice not to enter property may be given by fencing the property. "Fenced land" is land that has been enclosed by a fence of substantial construction. The fence may be made from rails, logs, posts and railings, iron, steel, barbed wire or other wire or material. The fence must stand at least three feet high. If a part of the boundary of a piece of property is formed by water, that part should be treated as legally fenced land. When every part of property is either posted or cultivated or fenced, the entire property is considered as enclosed and posted land.
“Law is not black or white, it's Grey”
West Palm Beach, Florida trespass lawyer Grey Tesh defends trespass of a structure or conveyance charges. Grey is a Florida bar board certified criminal trial lawyer based out of West Palm Beach, Florida.