Trespass Attorney in Miami, FL

If you or a loved one has been arrested for a trespass charge in Florida, it is critical to consult with an experienced Miami trespass lawyer as soon as possible to ensure that your rights are protected. You need the counsel of a criminal lawyer who has experience defending Florida trespass statute cases to maximize your chances of avoiding a criminal record and resolving your case with a favorable outcome.

What is Trespass?

The crime of trespass is a common misdemeanor offense, although, under limited circumstances, it may be charged as a felony. You commit a trespass when you go onto someone’s property or enter their home/building/motor vehicle/boat without permission or, after having permission, refuse to leave. One of the most common scenarios for trespassing offenses is when a patron attempts to enter (or re-enter) an establishment, usually a nightclub, and a bouncer or an off-duty police officer takes exception. Most people facing a trespass arrest in this situation feel that they have done nothing wrong and that the bouncer or police officer treated them unfairly. It is not uncommon for this criminal charge to be accompanied by a disorderly conduct or resisting without violence charge.

Trespass in a Structure or Conveyance

The first category of trespass under Florida law is trespass in a structure or conveyance, governed by Section 810.08 of the statutes. To be convicted under this section, the state must prove:

  • The defendant willfully entered or remained in a structure or conveyance without authorization, a license, or an invitation; or, after initially having permission, refused to leave after a warning from the owner, lessee, or someone authorized to act for them.
  • The structure or conveyance was in the lawful possession of another person at the time.

“Structure or conveyance” is defined similarly to how it is for burglary charges and includes structures, buildings, vehicles, aircraft, watercraft, and railroad cars. The property can be privately owned or a quasi-public place, such as a shopping mall or hospital, that is open to the public but retains the right to restrict access.

The entry or remaining must be done “willfully,” meaning intentionally, knowingly, or purposely. Permission to enter may be express or implied from the circumstances. For example, signs restricting access or a reasonable person believing they lacked the owner’s permission would show the entry was unauthorized.

This is generally a second-degree misdemeanor, but it can become a first-degree misdemeanor if someone else is inside the structure or conveyance. The offense becomes a third-degree felony if the person is already armed with a firearm or other dangerous weapon, or becomes armed while inside.

Trespass on Property Other Than a Structure or Conveyance

The second trespass crime is trespass on property other than a structure or conveyance, covered under Section 810.09. For the state to prove trespass under this statute, the main elements are:

  • The defendant willfully entered or remained on property other than a structure or conveyance owned by or in lawful possession of another.
  • The defendant had been given notice not to enter or remain via communication, posting, fencing, or cultivation.

Alternatively, the state can show the defendant entered or remained on the unenclosed curtilage of a dwelling with intent to commit a crime there.

The property can include open lands, yards, grounds, lakes, ponds, waterways, beaches, or other unenclosed areas. Notice not to enter can be given by the owner, agent, community association, or law enforcement authorized in writing by the owner. Signs, fencing, and cultivation of land can also serve as constructive notice of trespass.

This is generally a first-degree misdemeanor. It rises to a third-degree felony if the trespasser is armed with a firearm or other dangerous weapon during the offense, if certain types of posted property are trespassed, or when illegally shooting at animals across private lands.

Trespass on School Grounds

Under Section 810.097, entering or remaining on school property without legitimate business or other permission can be a second-degree misdemeanor. The statute also covers students who enter or remain while suspended or expelled. Entering or remaining after the principal or the principal’s designee directs someone to leave or stay off the property can be a first-degree misdemeanor. This law covers public and private K–12 schools and includes school buses.

A separate law, Section 810.095, makes trespassing on school property while bringing or possessing a firearm or a weapon covered by the statute a third-degree felony. For this offense, school property also includes career centers and postsecondary schools.

What is the Punishment for Trespass?

Although a prosecutor can file a trespass as a felony charge in certain circumstances, most types of trespass are either first- or second-degree misdemeanors. If you are convicted of the second-degree misdemeanor of trespassing in an unoccupied structure or conveyance, for example, the maximum punishment you can face would be:

  • A county jail sentence of up to 60 days (2 months)
  • A fine of up to $500
  • Up to six (6) months of probation

Under certain circumstances, trespass can be a first-degree misdemeanor criminal offense, in which case the maximum punishment would be:

  • A county jail sentence of up to one year
  • A fine of up to $1000
  • Up to one year of probation

Trespass can be charged as a third-degree felony when a person is armed during the offense or when other statutory conditions apply. For example, trespass on a construction site can be a felony when the site meets the applicable posting and identification requirements. Certain agricultural and horticultural properties also receive special protection under Florida law. A third-degree felony generally carries a maximum sentence of five years in state prison.

Property damage can create additional exposure in a trespass case. Our discussion of criminal mischief charges explains the damage thresholds and the special second-degree felony provision for certain damage committed during unlawful occupancy or trespass.

Common Defenses To The Florida Trespass Statute

The available defenses depend on the type of property and how the alleged trespass occurred. A personal warning to leave is not required in every case. We examine whether permission existed, whether any required notice was given, and whether the State can prove each element of the charged offense.

  • You never actually entered the property or refused to leave
  • You weren’t told to leave
  • You entered someone’s property by mistake (lack of intent)
  • Permission
  • The person who told you to leave or that you couldn’t come onto the property wasn’t authorized to speak for the owner
  • Lack of notice
  • Justification/Necessity
  • Although you were told to leave or that you couldn’t enter, a different person initially gave you permission

Our Miami criminal defense lawyers can review the evidence, identify weaknesses in the trespass charge, and explain your options.

If this is your first arrest, we can assess whether you qualify for a first-time offender program that may lead to dismissal of your trespass charge. Once the case ends, we can also review your eligibility for sealing or expunging your record.

Contact an Experienced Miami Trespass Attorney

If you or a loved one has been accused of criminal trespass in Miami, we can help. Our lawyers have extensive experience representing clients facing trespassing charges throughout Miami and understand how to build a strong defense in these cases. We will thoroughly examine the evidence against you, advise you of your rights, and aggressively defend you at every stage of the process. Many trespassing charges can be reduced or even dismissed with an experienced defense lawyer on your side. Don’t leave the outcome to chance. Contact us today for a free consultation and case evaluation. Our knowledgeable trespassing defense lawyers are here to help you fight the charges and protect your future.

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The material on this page represents general legal advice. Since the law is continually changing, some of the provisions contained here may be out of date. It is always best to consult a criminal defense attorney about your legal rights and responsibilities regarding your particular case.