Jury finds Occupy Gainesville member guilty of trespassing; judge withholds adjudication

Occupy Gainesville and UF members walk through Diddley Community Plaza after marching from the Plaza of the Americas on Nov. 2, 2011, in Gainesville. One member of the movement was in court Wednesday for a misdemeanor trial on a trespassing charge.

Matt Stamey/The Gainesville Sun
Published: Wednesday, May 15, 2013 at 4:00 p.m.
Last Modified: Wednesday, May 15, 2013 at 4:00 p.m.

More than a year and a half after dozens of Occupy Gainesville members were charged with trespassing after hours on downtown’s Bo Diddley Community Plaza, the first case went to trial Wednesday.

A jury deliberated for less than 20 minutes before finding Annette Gilley, 60, guilty on two charges of trespassing on the plaza shortly after midnight on Oct. 14, 2011.

But County Judge Thomas M. Jaworski then withheld adjudication, meaning Gilley will not have a conviction on her record, because she had no prior criminal history.

Gilley had faced up to 60 days in jail on each trespassing charge, although prosecutors sought only court costs and a fine. Jaworski required Gilley to pay about $160 in costs.

In October and November 2011, 29 defendants were arrested for remaining on the Bo Diddley Community Plaza after hours in violation of the city’s park curfew ordinance. Those arrested included Bo Diddley’s son, Ellas Anthony McDaniel, whose case has not yet gone to trial.

That October, Occupy Gainesville members had applied for a permit to use the park after hours for about 13 months. City Manager Russ Blackburn approved the permit for one night -- Oct. 12, 2011.

Late the next evening, as Oct. 13 turned to Oct. 14, Gainesville police went to the park to inform Occupy Gainesville members they would face citations or arrest for trespassing if they did not leave. At that time, Gilley went to stand on the speaker’s stone, a small concrete stand on the east end of the plaza with “freedom of speech” inscribed on it.

After police issued Gilley a notice to appear for trespassing because she remained in the park after a warning, she returned to the stand, which was put on the plaza in 1991 to celebrate the 200th anniversary of the Bill of Rights. She then was arrested for trespassing.

“I believe the community plaza is a town square, and it is designed to be a sanctuary for citizens to speak and to assemble,” Gilley said while testifying Wednesday. “The stone has the rights carved in it, literally carved in it.”

Prosecuting attorney Joshua Wright told jurors that Gilley’s actions that October night showed a “clear, discernable disrespect and disregard” for the law.

Gilley’s attorney, Geoffrey Mason, who represents the vast majority of the Occupy Gainesville defendants, said he plans to appeal Wednesday’s decision to circuit court.

Months back, defense attorneys sought to have a three-judge panel that included Jaworski dismiss all of the cases on the grounds that the city’s ordinance violated the First Amendment right to speech and assembly on the public square. In January, the panel ruled the cases could proceed.

At trial Wednesday, Mason argued the boundaries of the park were vague and that the permitting process for after-hours use of the park were vague and arbitrary.

He said he planned to return to the argument that the city law violates the First Amendment when requesting on appeal that a circuit court judge dismiss the case.

Under city ordinance, the Bo Diddley Community Plaza is a park, subject to an overnight curfew.

In a 2012 response to the prior attempt to dismiss all of the cases, prosecutors said there were compelling government interests behind the city’s regulation -- to maintain the park, protect against crime and noise, and prevent a "de facto campground in the middle of downtown Gainesville.”

As it stands, the homeless often sleep along the sidewalk just west of the park boundaries.

Ten of the 29 trespassing cases against members of the protest movement have been dismissed because police could not confirm that those defendants had received a warning before a citation, Mason said.

Gilley faces a second trial for a trespassing arrest in November 2011.

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