Jon H. Gutmacher, Esq.

Orlando Criminal Defense Lawyer

Former Prosecutor & Police Legal Advisor,

Author: "Florida Firearms -- Law, Use & Ownership",

NRA Certified Firearms Instructor,

NRA Referral Attorney.

JON H. GUTMACHER, P.A.: Orlando Criminal Trial Attorney Services

Trespass And Armed Trespass Charges In Florida

Trespass can be basically defined as unlawfully coming on, or staying on the property of another when you are on notice that your presence is not wanted. As such, trespass is a fairly clear cut crime in Florida, but has really been abused in commercial applications. As a general rule, you cannot be guilty of "trespass" unless you have been properly warned that your presence is not permitted, or no longer permitted on the subject property. The warning may be verbal, and sometimes may be written. In a nutshell, if you enter the subject property having been "legally" pre-warned not to – you have committed the crime of trespass. Likewise, if you fail to leave property after being warned to do so by someone with greater authority than yourself – you also commit the crime.

The statutes governing this crime are found in Chapter 810 of the Florida Statutes. The first section is Florida Statute 810.08 that covers "Trespass in a structure or conveyance". This section states anyone who "without being authorized, licensed, or invited" who "willfully enters or remains in any structure or conveyance", or is warned by the owner or lessee of the premises or a person authorized by the owner or lessee to depart, and then refuses to do so – commits the offense of trespass in a structure or conveyance.

Violation is normally a second degree misdemeanor, but if there’s a human being in the structure or conveyance (even if you don’t know that) it becomes a first degree misdemeanor, and if you happen to be armed with a firearm or other weapon during the trespass – it’s called an “armed trespass” and becomes a third degree felony. The way the statute is interpreted is that you can’t be convicted based on an innocent mistake. However, once you are warned by someone with authority - you must leave. If you decide to argue the issue, or argue their authority to have you leave – you have crossed the line into commission of the crime, and are subject to arrest. Interestingly enough, police and property owners do not have any authority under this statute to take you into custody or delay you unless you disobeyed their warning or refuse to leave.

A mistaken trespass is not a "trespass" until the warning to depart occurs. However, once warned, any refusal to immediately leave falls under Florida Statute 810.08(c), which subsection allows an owner or person authorized by the owner to take a trespasser into custody and hold them for the police in a reasonable manner. The abuses with this statute usually come from the practice of issuing a "trespass warning". This normally occurs in a commercial setting where a merchant decides (for whatever reason) that they don’t want someone on their property ever again. Many times it involves an honest argument between the merchant and customer on services. The merchant gets tired of listening to the complaint, or doesn’t want to hear the complaint – and tells the person to leave. They then try to issue the person a "trespass warning", sometimes demanding to see the person’s identification, etc. The issuance of a trespass warning is especially prevalent when security guards, or police are involved. From a legal standpoint – there is no legal authority to issue a trespass warning unless there is an actual trespass. Likewise, there is no legal duty of the person who is warned to leave to wait around, give your name, give your identifications, or anything else – unless you were actually trespassing or caught in the commission of some other crime. Unfortunately, police and merchants rarely realize this distinction (and many don’t care about it) – and I’ve seen many citizens arrested for "obstructing" when they refuse to cooperate as to not giving information on the trespass warning. Of course, in such a situation neither the initial detention, nor the subsequent arrest is legal – but that doesn’t make the trip to the jail a happy event for the hapless citizen.

Another thing you should know – and this is the most unfair thing about "trespass" in Florida – the merchant doesn’t have to have a legitimate reason for telling you to leave. They can do it for any reason they want. At the theme parks – this is sometimes a real problem. From my experience, it seems that anytime someone becomes a suspected problem – problem or not – they’re told to leave. Likewise, try to make a legitimate complaint about some problem at a theme park and make even a minor issue of it – you’re probably gonna be booted out – right or wrong. Many times a trespass warning is involved without the citizen having any idea that they are under no legal obligation to do anything but leave, and as a general rule – trespass warnings are "forever". It really stinks!

Is there legal recourse? The answer is "maybe" – but most of the time it isn’t worth pursuing from a civil standpoint. From the standpoint of criminal charges – you have a defense if an arrest ensued – but again, that means that once you were told to leave – you did so, and that the problems arose afterwards.

There are other sections of the statutes that deal with trespass on property other than a structure. I’m not going into that here other than to say don't go on property that's posted to stay off, and you can’t go on the property of any school unless you have some kind of legitimate business there, or some type of invitation or legitimate reason. (Florida Statute 810.097). Likewise, it is a third degree felony to trespass on school property with a gun or other weapon. (Florida Statute 810.095). If you want to know how to avoid these situations, my one word of advice is not to argue with an order to leave. Make it clear immediately that you will do so. If you have friends or family nearby who don't know of your situation -- ask the person if you or they can notify the others before leaving -- but if the answer is no -- you must leave immediately. If they ask for information for a trespass warning -- you'll have to make a choice. You can either comply, or you can tell them you don't want to do that since you're not trespassing, and are obeying their instructions to leave. But, if they push the point to where it may involve your arrest or detention for a refusal -- I'd comply, and make it clear in a polite manner that while you will comply, you consider their actions in delaying you and requiring this information illegal.


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