Burglary & Trespass

Florida statute 810.02 defines burglary as entering or staying on in a residential place, structure, or conveyance with the intent of committing some offense. This excludes premises that are meant for the public and if the person is invited or licensed to enter the premises. Hence, to prove the charge of burglary the prosecution has to establish:

• The accused did not have a legal right or permission to be in the dwelling (residence), structure or conveyance
• The accused entered or stayed on in the house, building or conveyance
• The intention of the accused was to commit a crime inside the premises or vehicle.

When it is proved that the person did not have permission or a legal right to be on the property or vehicle, but if the intention to commit any crime is absent, then the charges will be for trespassing and not burglary. Hence, for a burglary charge it is important for the prosecution to prove that the accused intended to commit some crime like theft, criminal mischief, or vandalism and so on. Secondly, the accused does not have to be caught in the criminal act of stealing and so on, to be charged with burglary. Merely establishing criminal intent is enough for making an arrest under a burglary charge.

A recent survey of the most qualified Burglary Defense Lawyers in Broward County tends to establish that although not required, the failure of law enforcement to provide evidence of theft is devastating to the Prosecutions case.

What Prosecutors Must Prove

In order to be charged with burglary you must enter a dwelling, structure or conveyance intending to commit a crime, unless the premises are open to the public at the time of entry. If the structure is not open to the public at the time you enter it (whether it is a public dwelling that is closed or a private residence) you must remain inside with the intention of committing an offense. If you were asked to leave and you remain inside intent on committing an offense or if you attempt to or commit a forcible felony, you can be charged with burglary.

A forcible felony may be an act of murder, treason, sexual battery, manslaughter, carjacking, burglary, home-invasion robbery, kidnapping, arson, aggravated assault, aggravated stalking, aggravated battery, aircraft piracy, unlawful discharging, placing, or throwing of bombs or destructive devices, and other felonies involving the use of or threat of physical force against a person.

Types of Burglaries

Florida law differentiates the forms of burglaries by considering where the crime has taken place.

• Burglary of a Dwelling: This means burglary in a home or residential premises. The residence could be occupied or unoccupied at the time of the crime. The term dwelling may include home, a garage attached to the house, railroad car, trailer, aircraft, inhabited space of a building, and even a warehouse where somebody is residing.
• Burglary of a Structure: This means burglary in non-residential premises. Usually this burglary is also referred to as business burglary, as the place broken into is a commercial establishment, like a shop or a store. The severity of the crime will depend on whether the structure was occupied or unoccupied at the time of burglary.
• Burglary of a Conveyance: As the name suggests, this is burglary in a motor vehicle. Here too the severity of the crime will depend on whether the vehicle was occupied or unoccupied at the time of the crime.

Penalties for Burglary Convictions

In Florida, burglary is a felony offense, and there are specific criteria for determining the degree of felony charge.

First Degree Burglary

Burglary can be a first degree felony offense when:

• The accused entered the premises with explosives or a deadly weapon, or gained possession of a deadly weapon after entering the premises
• The accused engaged in battery or assault against somebody while committing burglary
• The accused caused damage of over $1,000 to the property, while committing burglary
• The accused used a vehicle to gain entrance to the property, excepting using a vehicle for getaway
• The accused is a repeated offender

First-degree burglary carries a maximum sentence of life in prison and fine of up to $10,000. The accused can be sentenced for a lesser term depending on the circumstances and facts about the case. Secondly, first-degree burglary is considered one “Strike” under the “Three Strikes and You are Out” law. This means, if the convicted person commits any more felonies in future the sentence will be doubled in the new case.

Second Degree Burglary Here the accused commits burglary without the use of weapons, force, or assault, and nobody is hurt in the crime, but the premises are occupied during the commissioning of the crime. Second-degree felony is punishable with up to 15 years jail term, and fine of up to $10,000.

Third Degree Burglary All the circumstances remain the same as in second-degree burglary, but here the premises are unoccupied during the commissioning of the crime. Third-degree felony is punishable with jail term of up to five years and fine of up to $5,000.

Common Law Burglary

At common law, “burglary” was defined as the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony.It is a crime primarily involving the invasion of the possessory property rights of another. Its essential elements are (1) entering or remaining in (2) a structure or conveyance (3) with the intent to commit an offense therein.

Offenses Committed Prior to July 1, 2001

By statute, for offenses committed on or before July 1, 2001, burglary means entering or remaining in a dwelling, a structure, or 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 remain.Whether a certain area is open to the public, a fact which if established does not support a burglary conviction, is generally a jury question.

Offenses Committed After July 1, 2001 “Burglary” Means:

• (1) 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
• (2) notwithstanding a licensed or invited entry, remaining in the dwelling, structure, or conveyance:
  • (a) surreptitiously, with the intent to commit an offense therein;
  • (b) after permission to remain therein has been withdrawn, with the intent to commit an offense therein; or
  • (c) to commit or attempt to commit a forcible felony.

Florida Burglary Statute

The burglary statute defines the crime in alternative ways: one way is by stealthily breaking and entering the premises with an intent to commit an offense within; the alternative way is to stealthily remain in the premises after first being admitted consensually and only after being first admitted form the intent to commit an offense in the premises. Furthermore, a conviction for the crime of burglary of a dwelling requires proof of (1) knowing entry into a dwelling, (2) knowledge that such entry is without permission, and (3) criminal intent to commit an offense within the dwelling. For instance, in a burglary prosecution, proof of entering a structure by fraud or deceit may be considered to show that the entry was without the consent of the owner or occupant and may justify the finding that the act of entering was with the intent to commit a crime which would thereby constitute a burglary; the rationale for this is that consent to enter by fraud or deceit is actually no consent at all and, therefore, the entrance is unauthorized.

Even though the burglary statute does not in express terms proscribe the conduct which constitutes burglary, the statute taken as a whole is adequate to apprise persons of common understanding that the described conduct is forbidden. Thus, it is not unconstitutionally vague.

The legislature has also stated that consent remains an affirmative defense to burglary and that the lack of consent may be proven by circumstantial evidence, and, that, in order for a burglary to occur, it is not necessary for the licensed or invited person to remain in the dwelling, structure, or conveyance surreptitiously.

An attempted burglary involves a person who attempts, but fails, to gain entrance to a dwelling, structure, or conveyance. Burglary attorneys in Fort Lauderdale routinely argue mitigating factors unsuccessfully due to a lack of knowledge regarding a particular judges view on controversial issues such as attempt. Always be certain that your criminal lawyer knows your judges position on issues that may impact your specific criminal offense.

As you will see by reviewing the Florida Statute below, there are several forms of burglary depending on the nature of the structure, whether it was occupied and what the underlying offense was. You will also note that automobiles fall under the Florida burglary statute.

Florida Statute 810.02 Burglary

(1)(a)    For offenses committed on or before July 1, 2001, “burglary” means entering or remaining in 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 remain.

(b)    For offenses committed after July 1, 2001, “burglary” means:

1.    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

2.    Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:

a.    Surreptitiously, with the intent to commit an offense therein;

b.    After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or

c.    To commit or attempt to commit a forcible felony, as defined in s. 776.08.

(2)    Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:

(a)    Makes an assault or battery upon any person; or

(b)    Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon; or

(c)    Enters an occupied or unoccupied dwelling or structure, and:

1.    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

2.    Causes damage to the dwelling or structure, or to property within the dwelling or structure in excess of $1,000.

(3)    Burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, 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:

(a)    Dwelling, and there is another person in the dwelling at the time the offender enters or remains;

(b)    Dwelling, and there is not another person in the dwelling at the time the offender enters or remains;

(c)    Structure, and there is another person in the structure at the time the offender enters or remains;

(d)    Conveyance, and there is another person in the conveyance at the time the offender enters or remains; or

(e)    Authorized emergency vehicle, as defined in s. 316.003.

However, if the burglary is committed within a county that is subject to a state of emergency declared by the Governor under chapter 252 after the declaration of emergency is made and the perpetration of the burglary is facilitated by conditions arising from the emergency, the burglary is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this subsection, the term “conditions arising from the emergency” means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel. A person arrested for committing a burglary within a county that is subject to such a state of emergency may not be released until the person appears before a committing magistrate at a first appearance hearing. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed.

(4)    Burglary is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, 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:

(a)    Structure, and there is not another person in the structure at the time the offender enters or remains; or

(b)    Conveyance, and there is not another person in the conveyance at the time the offender enters or remains.

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William Moore is available to answer any questions that you may have regarding the offense of Burglary. Our Florida theft defense law firm offers aggressive and skilled representation to individuals accused of Theft in Broward County.