Burglary is defined by Florida Statute Section 810.02 as someone entering a home, structure, or conveyance owned by or in possession of another person with the intent to commit an offense in that location. Alternatively, burglary could mean a person enters a home, structure, or conveyance legally and remains in that location surreptitiously and with the intent to commit an offense there.
Burglary is a serious offense in Florida. An arrest for burglary may occur even if there is a small amount of evidence to support the claim. The penalties associated with burglary offenses hinge upon whether any battery or assault occurred during the commission of the crime, the type of property taken, and whether the accused who entered was carrying a firearm.
The statute of limitations applies in many burglary cases however, the applicable statute, Florida Statutes Section 775.15, now has a tolling provision for burglary offenses where the suspect’s identity is established through DNA evidence.
The twenty-one days following an arrest for burglary are critical given the fact that this time period is when the prosecution determines whether or not to pursue charges.
Definitions
Under Florida Statutes Section 810.02, “burglary” means:
- Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter; or
- Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:
- Surreptitiously, with the intent to commit an offense therein;
- After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or
- To commit or attempt to commit a forcible felony.
If the defendant possesses recently stolen property, unless this can be explained, can be used against him or her as evidence to sustain a conviction for burglary if the possession of stolen property and the circumstances of the burglary support a conviction beyond a reasonable doubt that a burglary was committed.
Under Florida Statutes Section 810.011, the term “dwelling” means “a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.” Florida law establishes that a dwelling also includes the outbuildings of a property that immediately surround it, the enclosed space of ground, as well as an attached garage.
A “structure” means “a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.” Further, a “conveyance” means “any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car; and “to enter a conveyance” includes taking apart any portion of the conveyance.” Otherwise stated, a “conveyance” includes anything used to transport people from one place to another.
In Florida, charges for unarmed burglary of a conveyance are least serious and charges for armed burglary of a dwelling are the most serious.
The applicable jury instructions for burglary-related offenses provide that a jury may infer that the suspect intended the commit the crime of burglary inside of a conveyance or structure if he or she entered without consent of the occupant or owner or in a stealth manner. In order to establish that a person entered a dwelling, structure or conveyance, the suspect’s entire body does not need to go inside of a dwelling, structure, or conveyance. Florida law establishes that if any part of one’s body, including just a hand, enters a dwelling, structure, or conveyance, this is sufficient to successfully convict a person for burglary.
In order to establish that a person intended to commit burglary, there may not be positive and direct proof. Hence, the prosecution can use circumstantial evidence to establish the requisite intent necessary for a successful burglary conviction.
The Types of Burglary Charges
In Florida, there are three types of burglary charges – third-degree felony, second-degree felony, and first-degree felony.
Third-Degree Felony
Burglary to an unoccupied structure or to a conveyance qualifies as a third-degree felony which is associated with a five-year prison term. This type of burglary charge is the most common that is pursued by the prosecution in Florida. Third-degree felony is considered a Level 4 offense under Florida’s Criminal Punishment Code. The types of burglaries that qualify as a Level 4 offense include if the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a structure, and there is not another person in the structure at the time the offender enters or remains; or conveyance, and there is not another person in the conveyance at the time the offender enters or remains. Moreover, whoever has in his or her possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree.
Second-Degree Felony
A burglary – a Level 6 offense under Florida’s Criminal Punishment Code, is enhanced to a second-degree felony, which carries with it a punishment of up to fifteen years in jail, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:
- Dwelling, and there is another person in the dwelling at the time the offender enters or remains;
- Dwelling, and there is not another person in the dwelling at the time the offender enters or remains;
- Structure, and there is another person in the structure at the time the offender enters or remains;
- Conveyance, and there is another person in the conveyance at the time the offender enters or remains;
- Authorized emergency vehicle, or
- Structure or conveyance when the offense intended to be committed therein is theft of a controlled substance.
First-Degree Felony
Burglary that is a felony of the first degree – a Level 8 offense under Florida’s Criminal Punishment Code – is punishable by a maximum term of life imprisonment if, in the course of committing the offense, the offender:
- Makes an assault or battery upon any person; or
- Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon; or
- Enters an occupied or unoccupied dwelling or structure, and:
- Uses a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense, and thereby damages the dwelling or structure; or
- Causes damage to the dwelling or structure, or to property within the dwelling or structure in excess of $1,000.
Burglary of a dwelling that includes a battery or assault is also a first-degree felony which is punishable by a life prison term. As a Level 8 offense, it requires a minimum of 74 points on the scoresheet of Florida’s Criminal Punishment Code. Otherwise stated, the charge of burglary is elevated to a first-degree felony and punishable by a life prison term if the suspect commits a battery or assault of a person during the commission of the crime. In essence, a burglary with assault or battery requires that the prosecution prove beyond a reasonable doubt that the suspect entered a conveyance, structure, or dwelling with the intent to commit an offense therein, and commits an assault or battery upon any individual while using a dangerous weapon.
Penalties
The sentence for burglary will depend on a number of different factors, such as the type of structure entered, the manner in which the offense was committed, and the use of any weapons during the burglary. You could be charged with 1st-, 2nd-, or 3rd-degree felony.
1st-Degree Felony
Burglary is a 1st-degree felony if an offender commits an assault or battery upon any person, becomes armed within the dwelling, structure, or conveyance with explosives or a dangerous weapon, or if the defendant enters an occupied or unoccupied structure using a motor vehicle as an instrument in committing the offense. Usually, the last factor involves a person using a car or truck to ram into the side of a building or structure, causing damage to the property in excess of $1,000. This type of offense will usually result in a life prison sentence.
2nd-Degree Felony
A 2nd-degree felony happens if a defendant enters the home of another person and there is another person present in the building apart from the accused. For example, if a person commits burglary at night, and there are people sleeping in the apartment he or she is attempting to rob, it would be considered a 2nd-degree felony. However, even if there isn’t someone in the aforementioned apartment, the defendant could still be charged with burglary. For example, if an offender enters a home used for tax purposes, rather than dwelling, he or she could still be accused of burglary even though no one currently lives in the home. A 2nd-degree felony will result in up to 15 years in prison or 15 years of probation and a $10,000 fine. These burglaries don’t involve assault or carrying a dangerous weapon.
3rd-Degree Felony
A 3rd-degree burglary charge is the least serious and can lead up to 5 years in prison or 5 years of probation. Additionally, a person charged with a 3rd-degree felony might need to pay a penalty of up to $5,000.
Burglary by Impairing Power or Telephone
In addition to facing burglary charges, an individual can be charged with impeding or impairing a dwelling’s power or telephone transmission, which is a third-degree felony associated with a punishment of up to five years in jail.
Under Florida Statutes Section 810.06, “a person who, for the purpose of facilitating or furthering the commission or attempted commission of a burglary of a dwelling by any person, damages a wire or line that transmits or conveys telephone or power to that dwelling, impairs any other equipment necessary for telephone or power transmission or conveyance, or otherwise impairs or impedes such telephone or power transmission or conveyance commits a felony of the third degree.”
Frequently Asked Questions about Burglary
When we meet with a prospective client for the first time, we are typically asked several common questions. As such, we felt that it was helpful to post them on our site to arm you with the necessary information to help you understand the various elements of burglary, the nature of the charges, and the potential punishment as dictated by Florida law. These are as follows:
What are the types of burglary charges in Florida and the associated penalties?
All burglaries in Florida are felonies under the applicable law, which are broken down as follows:
- Third-degree felony, which carries with it a maximum five-year prison term.
- Second-degree felony, which carries with it a maximum fifteen year prison term
- First-degree felony, which carries with it a maximum life prison term.
What is a residential burglary?
A residential burglary is a burglary of a dwelling, which simply means a burglary of a home or place where people sleep at night. This may include a burglary of a conveyance such as an RV or camper, since they allow people to sleep in them. Keep in mind that a dwelling includes the area surrounding the house, such as a porch, deck or any other area next to a home. Burglary of a residence is the most serious type of burglary charge in Florida.
I’m being charged with aggravated burglary. What is the potential prison term for this offense?
It is first-degree felony to commit aggravated burglary (if a battery or assault occurs, if the offender is armed with a firearm, or where severe property damage occurs) is punishable for a term of up to life in prison.
What is the difference between burglary and robbery?
A burglary occurs when a person enters or remains in a building, car or house without the owner’s permission, with the intention of committing an offense therein. It does not matter whether the building, car, or house are occupied. Conversely, a robbery is the forceful taking of property from their person. Breaking into someone’s home when no one is there and stealing their property constitutes a burglary, not a robbery.
Can I be charged with both robbery and burglary?
If a robbery occurs while a burglary is being committed, it is usually charged as home invasion robbery or aggravated burglary (an assault or battery took place). Therefore, a person cannot be charged with both robbery or burglary.
Are robbery and theft the same offense?
No. Theft is defined as taking a person’s property temporarily or permanently without their permission. Robbery is the forceful taking of property from their person without the individual’s consent. You can commit a theft of a person’s property when he or she is not present. A robbery involves taking a person’s property from them directly.
What is the evidence that the prosecution will use to prove that I committed burglary?
If an accused is not found in a premises, which can include a home, building, or car, at the time of the burglary, then fingerprints can be obtained at the crime scene and used as evidence against a person that he or she was located in a premises without the owner’s consent. Video evidence caught by a person’s home security system is also admissible as evidence against an accused, as long as it is clear and of high quality. If people witnessed a burglary, such as a passerby or a neighbor, their testimony that identifies the offender can be sought in a burglary case. Lastly, another way of establishing burglary is if someone takes property and attempts to sell it to a paw shop. Assuming that the pawn shop took the name and contact information of the suspect, law enforcement can seek to question them about the alleged burglary.
Is breaking into someone’s house considered burglary?
Yes, breaking into a person’s house without their consent, unless subject to certain exceptions such as an emergency situation, qualifies as burglary. You can also be charged with burglary if you have permission to enter a person’s home and that permission is revoked. In such event, if you remain in the persons; home and commit an offense therein, or have an intention of committing an offense therein, you could face burglary charges.