Burglary, as defined in Florida, is more expansive than other States or under common law theories. Burglary is not limited to the old breaking and entering into a home at nighttime with the intent to commit an felony therein

In Florida, Burglary means the entering or remaining in a dwelling, (home, house) or structure, (shed) or a conveyance (car, truck, automobile) with the intent to commit an offense (felony or misdemeanor) therein, unless the premises are open to the public or the defendant is licensed or invited to enter or remain.

Burglary Penalties

Penalties for Burglary vary depending if it is a dwelling, occupied dwelling, or structure. Other factors that affect a defendant’s sentence are whether the burglar was armed or unarmed (guns or other weapons). Being armed includes becoming armed by taking weapons, guns located in the house while people who have a right to be there occupy the dwelling. Committing an assault or battery in an occupied dwelling can get you 30 years in prison.

Burglary Defense

Intent: The most important aspect of proving Burglary is the intent of the Defendant when he unlawfully entered or remained on a property. There must be proof of the intent to commit another crime in the dwelling, structure etc. Otherwise without this proof, the Defendant is guilty of trespass not Burglary. Burglary is most often associated with theft.

  • Two teenagers approached the front door of a house, and one kicked the door, breaking it open. The owner was startled, and they ran off. They testified they were playing a prank, and only intended to make a loud noise, and did not intend to break the door or enter the house. Held: The evidence of the intent to commit a crime within the structure was insufficient, and the court erred in failing to dismiss the burglary charge. T.A.W. v. State, __ So. 3d __, 37 F.L.W. D2570 (2d DCA 11/2/2012)

Double Jeopardy: Under the 5th Amendment, the Defendant cannot be tried (by the same sovereign) more than once for the same charge or other charges or sub-charges of the same set of facts or be charged and convicted for multiple offenses that underlie the same set of facts.

  • Defendant may not be convicted of multiple counts of burglary with an assault based on a single entry into a home containing multiple people. Burkhalter v. State, __ So. 3d __, 38 F.L.W. D1001 (1st DCA 5/6/2013)

Dwelling: The, Courts recognized that to qualify as a dwelling, the structure must not only be designed to be occupied by people for lodging therein at night, but also that it must not be substantially changed to the extent that it becomes unsuitable for lodging by people. The only exception would be that created by the legislature in section 810.011—if a structure became unsuitable for lodging because of substantial changes occurring during a state of emergency. For instance, if a hurricane caused a wall of a house to collapse, the remaining portions or remnants of the house would still qualify as a dwelling despite the fact that the character of the house had substantially changed to the extent that the house was unsuitable for lodging.

Dwelling” issue defined: In determining whether a structure is a “dwelling” for burglary purposes, it is the character and purpose of the house that determines whether it is a dwelling. Under sec. 810.011(2), a building is a dwelling if it has a roof and is designed to be occupied by people lodging therein at night. Thus, when a house is undergoing a major renovation and it is not suitable for occupancy, it still remains a “dwelling” because it is designed to be occupied by people at night. The Florida Supreme Court weighed in on the issue at least as the question applies to burglaries. The court held that a home undergoing extensive renovation that has left it uninhabitable is still a “dwelling” for burglary purposes. The court approved Young v. S., 73 So. 3d 825 (5th DCA 2011), and reversed Munoz v. S., 937 So. 2d 686 (2d DCA 2006).

Possession of Burglary Tools

Whoever is in possession of any tool, machine or implement with the intent to use the same or allow the same to be used to commit a burglary or trespass is guilty of a 3rd degree felony. Case Law: Where the Court acquits the Defendant on a Burglary charge he cannot be convicted of Possession of Burglary Tools. M.F. v. State, 864 So. 2d. 1223 (1DCA 2004)

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