Defenses to Trespass in a Structure or Conveyance in Florida

July 9, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, trespass in a structure or conveyance is a serious criminal offense. Depending on the facts of the case, trespass may be charged as a second-degree misdemeanor (punishable by up to 60 days in jail and a $500 fine), a first-degree misdemeanor (punishable by up to 1 year in jail and a $1,000 fine) or a third-degree felony (punishable by up to 5 years in prison and a $5,000 fine).

If someone is arrested and formally charged with trespass in a structure or conveyance, this can be extremely stressful. However, various defenses exist to a charge of trespassing in Florida. This article will discuss the offense of trespass in a structure of conveyance and outline defenses, one or more of which may be relevant in any given case.

Under Fla. Stat. Section 810.08, trespass occurs when someone willfully enters or remains in a building (structure) or vehicle (conveyance) without permission – or is invited but refuses to leave after being warned to depart (trespass by remaining).

For someone to be convicted of trespass in a structure or vehicle, the State must prove all the following elements beyond a reasonable doubt:

• The defendant willfully entered or remained in the structure or conveyance (not accidental or mistaken)
• The defendant did so without authorization, license or invitation
• The defendant was aware that notice of trespass had either been given verbally (the owner/agent told them to leave) or by the posting of signs, fences, or other indicators of private property (for trespass by entry)

Trespass is typically a second-degree misdemeanor (punishable by up to 60 days in jail and a $500 fine). But trespassing is an enhanceable offense under Florida law, meaning that the seriousness of a trespass charge depends on the nature of the alleged trespass. 

If someone else is present inside the structure or conveyance when the trespass occurs, trespassing charges increase to a first-degree misdemeanor punishable by up to 1 year in jail, 1 year of probation and a $1,000 fine. If a firearm is carried or acquired during the trespass, the offense is a third-degree felony punishable by up to 5 years in prison and a $5,000 fine.

The terms “structure” and “conveyance” in the context of criminal trespass are defined under Fla. Stat. Section 810.011(1). A structure means any kind of building, temporary or permanent, that has a roof over it – including the enclosure of such a building (including a tent or mobile structure).

Examples of Structures include:

• Houses
• Garages
• Offices
• Sheds and tents

Under Fla. Stat. Section 810.011(3), a conveyance is defined as any of the following:

• Motor vehicle
• Ship or vessel
• Railroad vehicle or car (train)
• Trailer
• Aircraft
• Sleeping car 

If someone is charged with criminal trespass, there are various lawful defenses to this allegation. One of them is that there was no notice given. If there is no signage, fencing, verbal warning or other communication indicating that someone is trespassing, a defense can be asserted that the “trespass” was not willful and knowing. Rozier v. State, 402 So. 2d 539, 542-43 (Fla. 5th DCA 1981).

Importantly, however, trespass is a general intent crime. This means that if someone enters and remains (knowingly and willfully) without the permission of the property owner authorized to deny that permission, it is trespass. For example, someone cannot enter a random home because there are no signs outside explicitly designating it as private property. Id.

Another defense to trespass is implied or express permission to enter (or remain). If the owner or possessor of the structure or conveyance (person authorized to deny entry) explicitly told the defendant they could be on/in the property or implied it, this is a defense to trespass charges. 

Note: The Florida Bar’s standard jury instructions (13.3) for trespass explicitly recognize that it is lawful to enter or remain if a reasonable person would believe that they had the permission of the owner/possessor/occupant based on the totality of the circumstances. 

An additional defense to trespass is privilege or legal authority. If entry is allowed by law or government action (such as police with a warrant or utility workers under certain circumstances), a trespass charge is likely to fail.

Another defense to trespass in a structure or conveyance is the necessity defense. Bozeman v. State, 714 So. 2d 570 (Fla. 1st DCA 1998).

Though this is sometimes difficult to establish, as it is an affirmative defense (the defendant must show some evidence of necessity), the necessity defense applies if:

• There was an immediate urgency (serious and imminent threat to the defendant or others)
• Entry of the structure or conveyance was the only option
• The harm avoided was greater than the harm caused

There are two types of necessity defenses – public and private necessity.

Public necessity involves protecting the community, and can serve as a defense to what would otherwise be criminal trespass in situations such as:

• Firemen or law enforcement entering private property to stop a spreading fire or evacuate residents 
• A utility or city worker enters land to shut off a leaking gas line

Examples of private necessity include when entry is justified to prevent serious harm to oneself or their property, and include situations such as:

• Seeking shelter in a nearby home during a life-threatening blizzard
• Someone being chased by an aggressive dog or attacker jumps a fence and hides in a neighbor’s backyard

Another defense to trespass is lack of intent (mistake). If the trespass was not willful and someone reasonably believed they had the right to be in a particular place (such as going to the wrong house when they believed it was a friend’s address), this may serve as a defense to criminal trespass.

If someone is charged with trespass by remaining, a prominent defense is that there was no actual communication to leave. When an invitation is extended to enter a business (or other property), an actual communication is required to put a person on notice that they are no longer welcome on the property and may be arrested for trespass. Smith v. State, 778 So.2d 329, 331 (Fla. 2d DCA 2000)

Moreover, the designee of property owner defense may be relevant in certain cases. This is because when a person other than the actual owner or occupant gives an order to depart the property, the State must show beyond a reasonable doubt that the person who ordered the alleged trespasser to leave was authorized by the owner or occupant to give such orders. B.C. v. State, 70 So. 3d 666 (Fla. 1st DCA 2011)

For example, this defense may apply in a case where a neighbor of the property owner or occupant orders someone to get off the owner or occupant’s property, and when someone does not do so, the “trespasser” is arrested. If that neighbor has not been explicitly designated with the authority by the owner of the structure or conveyance to order “trespassers” off the property, this could be a viable defense.

In addition to the many lawful defenses to trespass in a structure or conveyance, there are also various “non-defenses” (not legally valid) to this charge in Florida. These include:

• “I didn’t damage anything”: Trespass is about unauthorized entry, not whether damage occurred.
• “It was only for a few seconds”: Duration of the trespass is not relevant – only whether it took place.
• “Nobody was there”: Though this fact may be relevant in asserting other defenses (such as implied permission), it does not matter if the structure or conveyance was occupied at the time of the trespass – only that an entry occurred without the consent of the owner

In sum, trespass in a structure or conveyance is a serious criminal offense in Florida. Depending on the facts of the case, it can be charged as anywhere from a second-degree misdemeanor to a third-degree felony punishable by a maximum of between 60 days (second-degree misdemeanor) and 5 years (third-degree felony) in prison.

However, there are various defenses that exist if someone is charged with trespass in a structure or conveyance. These include lack of intent, implied permission, mistake, insufficient notice, necessity, no communication to leave (if charged with remaining) and more. 

If someone is arrested and formally charged in Florida with trespassing, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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