What is the penalty for trespassing in Florida?

Trespass charges come from ordinary places in South Florida: a store in Boca Raton that told someone not to come back, a fenced construction site in Deerfield Beach, a condominium pool in Hollywood, a vacant lot in Stuart. Most are misdemeanors heard in county court, but the same statute has felony versions, and the difference often turns on one fact, such as whether someone was inside or whether a sign was posted. The overall misdemeanor process, from notice to appear to diversion, is on our misdemeanor charges in South Florida page.

What counts as trespassing under Florida law?

Florida has two main trespass crimes, and which one applies depends on the kind of property. Section 810.08 covers a structure or conveyance. A person commits it by willfully entering or staying without being "authorized, licensed, or invited," or by refusing to leave after being warned to depart by the owner, the lessee or a person authorized by them (s. 810.08(1)). Section 810.09 covers everything else, such as open land, a yard or a parking area. There, the person must enter or remain without permission on property where notice against entering was given, either by direct communication or by posting, fencing or cultivation (s. 810.09(1)(a)1.).

The definitions in s. 810.011 decide which statute fits. A "structure" is a building of any kind with a roof, together with its curtilage (s. 810.011(1)). A "conveyance" includes a motor vehicle, ship, vessel, trailer, aircraft or railroad car (s. 810.011(3)). So a parked car is a conveyance, and the fenced yard around a house can count as part of the structure.

There is one situation where no warning or sign is needed at all. Entering or staying on the unenclosed curtilage of a dwelling, meaning the land and outbuildings closely tied to a home, is trespass if the person intends to commit another offense there (s. 810.09(1)(a)2., (1)(b)). Entering with intent to commit an offense inside a structure or conveyance is a different and far more serious crime, burglary, explained in whether burglary is always a felony in Florida.

What is the penalty for each kind of trespass?

The jail and fine ceilings come from ss. 775.082 and 775.083. Two points surprise people. First, trespass on land after notice is now a first-degree misdemeanor in the current statute, the same degree as defying a direct order to leave (s. 810.09(2)). Second, the "person inside" rule in s. 810.08(2)(b) is written broadly: it applies if a human being was in the structure or conveyance at the time, which can describe an open store or an occupied office building.

How does a warning, a sign or a fence give notice?

For land, notice is the heart of the case. The statute recognizes "actual communication," meaning someone told the person to stay off or to leave, and three physical kinds of notice: posting, fencing and cultivation (s. 810.09(1)(a)1.). Each one has a definition.

• Posted land. Signs no more than 500 feet apart along the boundary and at each corner, with "no trespassing" and the name of the owner, lessee or occupant in letters at least 2 inches high, placed so they are clearly noticeable from outside the boundary (s. 810.011(5)(a)1.).
• Painted notice. International orange paint on trees or posts with stenciled "No Trespassing" letters at least 2 inches high and 1 inch wide, with the bottom of the mark between 3 and 5 feet off the ground, and accompanied by complying signs where entry is normally expected (s. 810.011(5)(a)2.).
• Fenced land. Land enclosed by a fence of substantial construction at least 3 feet high (s. 810.011(7)).
• Cultivated land. Land cleared and planted with a crop, orchard, grove, pasture or trees, or fallow as part of a rotation (s. 810.011(6)).
• Small home lots. Posting is not necessary for enclosed land of 5 acres or less with a dwelling house on it (s. 810.011(5)(b)).

Land that is posted, cultivated or fenced is treated as "enclosed and posted" (s. 810.011(8)), and an unauthorized entry onto enclosed and posted land is prima facie evidence of the intent to trespass (s. 810.12(1)). That presumption helps the State, which is why the defense often starts by checking whether the signs or the fence actually met the definition on the day in question.

A "trespass warning" from a store, a condominium association or the police is the actual-communication kind of notice. Under the statutes, the owner or lessee, or an agent, may give the order to leave, and so may an officer whose department has the owner's written authorization to communicate one in the case of a threat to public safety or welfare; for land, a community association authorized as the owner's agent also qualifies (ss. 810.08(3), 810.09(3)). The statute does not say how long a warning lasts or how it must be recorded, so the date, who gave it, the exact words and any written form are worth gathering early. Stores in particular often issue these warnings after a theft stop, as discussed in what happens after a shoplifting arrest.

How does a trespass case move in South Florida?

1. The stop. An officer may arrest without a warrant for a misdemeanor committed in the officer's presence, immediately or in fresh pursuit (s. 901.15(1)); for school trespass, an officer with probable cause may arrest on or off campus without a warrant (s. 810.097(4)). Many people are released on a notice to appear instead (Rule 3.125).
2. Armed trespass only. In the felony versions, the owner or an authorized person may detain the suspect in a reasonable manner for a reasonable time and must call law enforcement as soon as practicable (ss. 810.08(2)(c), 810.09(2)(b)).
3. First appearance. A person who is booked sees a judge within 24 hours of arrest (Rule 3.130(a)).
4. The right court. Misdemeanor trespass goes to county court (s. 34.01); the felony versions go to circuit court (s. 26.012). The Palm Beach State Attorney lists trespass among the typical misdemeanors handled by its County Court Division.
5. The courthouse. Under the 15th Circuit's Administrative Order 4.603, Southern Region cases are heard at the South County Courthouse, 200 West Atlantic Avenue, Delray Beach, and citations needing a hearing from Boca Raton, Boynton Beach and Delray Beach police and from Florida Atlantic University are scheduled there; northern cases go to the North County Courthouse in Palm Beach Gardens and central cases to the main courthouse in West Palm Beach. Broward's county criminal judges sit at the Central Courthouse in Fort Lauderdale and at satellite courthouses in Hollywood, Plantation and Deerfield Beach. Miami-Dade misdemeanors are heard at the Gerstein Justice Building and branch courts, and Martin County cases at the courthouse at 100 SE Ocean Blvd in Stuart, described in the Martin County Courthouse in Stuart.
6. Diversion, plea or trial. Pretrial intervention is open to a first offender, or someone with no more than one prior nonviolent misdemeanor, charged with a misdemeanor or third-degree felony, with the consent of the administrator, the victim, the State Attorney and the judge (s. 948.08(2)). Broward's Misdemeanor Diversion Program decides eligibility at arraignment and charges $150 per defendant with no refunds. Otherwise, a misdemeanor goes to trial within 90 days of the formal charge unless the time is waived (Rule 3.191(a)), before a jury of six (s. 913.10).

Delray Beach court dates are described in what to expect at the South County Courthouse. The program rules by county are compared in pretrial diversion in Palm Beach and Broward.

What changes the answer?

• Who was inside. A human being in the structure or conveyance raises trespass from second to first degree (s. 810.08(2)(b)).
• A weapon. Being armed with a firearm or other dangerous weapon makes either trespass statute a third-degree felony, and for a building or vehicle so does arming oneself inside (ss. 810.08(2)(c), 810.09(2)(b)). A weapon charge may also follow, as covered in concealed carry without a license.
• Proof of notice. For land, the State must show actual communication or posting, fencing or cultivation that meets s. 810.011. A sign that was missing, faded or posted on only one side of a lot is a real question.
• Who gave the order. Only the owner, the lessee or an authorized person can trigger the "warned to depart" rule (ss. 810.08(1), (3), 810.09(3)). An invitation from a tenant or a lessee can also matter, since permission is part of the offense.
• Intent to commit a crime. Entering a building or vehicle with that intent is burglary, not trespass (s. 810.02), so the charging decision often turns on what the State can prove about intent.
• Damage. If property was broken during the entry, a criminal mischief count may be added, graded by the dollar amount, as explained in when criminal mischief becomes a felony.
• The place. Schools, large ticketed events and the posted sites in s. 810.09(2) carry their own rules and degrees.
• Sentencing for the felony versions. Florida requires a nonstate prison sanction for many third-degree felonies with 22 or fewer scoresheet points, absent written findings of danger to the public, but the statute excludes third-degree felonies under chapter 810, which includes armed trespass (s. 775.082(10)).

A worked example

For example, consider a hypothetical man who is told by a Boca Raton store manager, in front of a security officer, not to come back after an argument at the register. Three weeks later he returns to buy something, staff recognize him, and Boca Raton police give him a notice to appear for trespass in a structure under s. 810.08. Because the store was open and customers were inside, the State may charge first-degree trespass under s. 810.08(2)(b), with a ceiling of 1 year and $1,000. His court date is at the South County Courthouse under Administrative Order 4.603. The key questions are whether the manager had authority to warn him, what was said, and whether video or a written trespass form exists. Had he carried a knife into the store, the same facts could become a third-degree felony under s. 810.08(2)(c). With no record, he could ask about pretrial intervention (s. 948.08(2)). This is a hypothetical illustration of the statutes, not a client's case or a prediction of any result.

Common mistakes in trespass cases

• Going back to the property while the case is open, which can lead to a new charge and harder bond conditions.
• Arguing with the officer at the scene, which can add a resisting charge, explained in whether resisting without violence is a crime.
• Assuming no sign means no crime. A spoken warning is enough, and a small fenced home lot needs no posting at all (s. 810.011(5)(b)).
• Signing the waiver on the notice to appear and pleading at the first court date without knowing the record effect (Rule 3.125(k)(1)).
• Missing the court date, which leads to a warrant (Rule 3.125(h)), as covered in what happens if you miss a court date.
• Letting photos of the signs, the fence or the gate go undocumented until after the owner changes them.

What to do this week

1. Find the statute on the notice or booking sheet: s. 810.08, s. 810.09, s. 810.097 or s. 871.05.
2. Write down who told you to leave or stay away, when, where and in what words.
3. Photograph the property line, signs, fence and gates as they are now, with the date.
4. Save any texts, emails or written trespass forms from the owner, the store or the association.
5. Stay off the property until the case is resolved.
6. Calendar the court date and courthouse, and talk with a defense lawyer about diversion before arraignment.

Frequently asked questions

Is trespassing a felony in Florida?

Usually not. Most trespass is a first- or second-degree misdemeanor, but being armed, entering certain posted sites, or entering a large ticketed event without authorization is a third-degree felony with a maximum of 5 years (ss. 810.08(2)(c), 810.09(2), 871.05(3)(b), 775.082(3)(e)).

Can the police give a trespass warning for a store?

An officer may communicate an order to leave if the department has written authorization from the owner, the lessee or an agent, in the case of a threat to public safety or welfare (ss. 810.08(3), 810.09(3)). The owner or the owner's agent may also give the warning directly.

Is it trespass if the door was unlocked or the gate was open?

An open door is not permission. For a structure, the question is whether you were authorized, licensed or invited, or refused to leave after a proper warning (s. 810.08(1)). For land, the question is whether notice was given by communication, posting, fencing or cultivation.

Can a student be charged for being on a school campus?

Yes. A student under suspension or expulsion, or anyone without legitimate business, commits a second-degree misdemeanor; staying after the principal or a designee orders the person to leave is first degree (s. 810.097(1), (2)). For young people, ask about the juvenile civil citation program.

Can a trespass charge be sealed?

Trespass is not on the list of offenses that can never be sealed (s. 943.0584). A dismissed case is usually sealed automatically (s. 943.0595(2)), and a withheld case may be sealed by petition if the person was never adjudicated guilty of a criminal offense (s. 943.059(1)(b)); see what a withhold of adjudication means.

Can I be charged for sneaking into a concert or game?

Yes. Willfully entering or staying in a venue without authorization during a ticketed event with attendance over 5,000 is a third-degree felony under s. 871.05(2)(c) and (3)(b).

How can Mr. Mead help?

Mr. Mead has more than three decades of criminal defense experience in South Florida courts. In a trespass case, he looks at who gave the warning and whether they had the authority to give it, whether the signs or fence met the statute, whether anyone was inside, what video and witnesses show, whether diversion fits, and how each possible plea would affect your record. Every case is different, and no result can be promised. The consultation is free, and you can call (561) 362-6677 24 hours a day.

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