Crimes for Burglary
While most burglary cases involve an unlawful entry into a dwelling or structure with the intent to commit a property-related offense, Florida’s burglary statute does not limit its application to such offenses. Instead, the statute requires an “entry” with the intent to commit “an offense” therein as explained by Fla. Stat. § 810.02(b).
Florida’s burglary statute does not necessarily require “forced entry.” See Jimenez v. State, 703 So. 2d 437, 441 (Fla. 1997) (“Neither forced entry nor entry without consent are requisite elements of the burglary statute.”).
An arrest for burglary might occur even if little evidence exists to support that accusation. The burglary statute in Florida no longer requires a break-in. In these cases, an aggressive defense is needed to show the lack of evidence and other problems with the case.
The penalties for burglary crimes depend on the type of property entered, whether any assault or battery occurred during the offense and whether the person who entered the property was armed or unarmed. This article discusses the statutory elements of the crime of burglary, the jury instructions, and potential defenses that might apply to your case.
Attorney for Burglary Crimes in Tampa, FL
If you or a loved one has been arrested for the criminal offense of burglary or armed burglary of a dwelling, then contact an experienced criminal defense attorney in Tampa, Hillsborough County, FL, at the Sammis Law Firm.
Although burglary charges are serious, important defenses exist to fight the charges. We represent both juveniles and adults charged with burglary.
The first twenty-one (21) days after the arrest are critical. During those first 21 days, the prosecutor with the State Attorney’s Office decides whether to file formal charges.
The attorneys at Sammis Law Fim fight a variety of serious felony offenses. We help our clients fight the charges by filing motions to suppress evidence illegally seized or motions to dismiss the charges for insufficient evidence. In some cases, an officer might arrest a suspect found in possession of items recently stolen during a burglary.
Definition of Burglary under Florida’s Section 810.02
Under Florida Statutes Section 810.02, the crime of “burglary” is defined as:
- surreptitiously entering or remaining;
- in a dwelling, structure, or conveyance;
- with the intention to commit an offense (other than trespass or burglary) inside of the dwelling, structure, or conveyance;
- at a time when the defendant is not licensed or invited to enter or remain; and
- in an area that is not open to the public.
The fact that the defendant was in possession of the recently stolen property (unless satisfactorily explained) can be used as evidence to support a conviction of burglary if the circumstances of the burglary and of the possession of the stolen property convince the jury beyond a reasonable doubt that the defendant committed the burglary.
Pursuant to § 810.011(2), Fla. Stat., 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 enclosed space of ground and outbuildings immediately surrounding it.
For purposes of Florida’s burglary statute, the term “dwelling” is defined to include any building that people use as a shelter, lodging, or home. The dwelling includes the porch of the home and any buildings attached to it such as a garage. A dwelling can include a mobile home, RV, or tent.
Keep in mind that the standard jury instructions provide that the enclosure need not be continuous as it may have an ungated opening for entering and exiting. For purposes of this crime, a “dwelling” includes an attached garage. See Dubose v. State, 210 So. 3d 641 (Fla. 2017).
A “structure” is any building that has a roof and floor and includes the buildings attached to it such as a garage. A “conveyance” most commonly refers to a car, truck, or another motor vehicle, but it can also include an airplane, vessel, or boat (anything used to transport people from one location to another).
Charges for armed burglary of a dwelling are the most serious while charges for an unarmed burglary of a conveyance are the least serious.
Standard Jury Instructions for Burglary Charges
The jury instructions for a burglary offense provide that the jury may infer that the defendant had the intent to commit a crime inside the structure or conveyance if he entered in a manner that was stealthily and without the consent of the owner or occupant.
In order to enter, the defendant’s entire body does not have to go inside of the structure, dwelling or conveyance, instead it is sufficient if any part of his body goes inside, including a hand.
The intent to commit a crime therein looks at the operations of the defendant’s mind which is not always capable of direct and positive proof. Therefore, the prosecutor is allowed to attempt to establish evidence of intent by the use of circumstantial evidence.
Penalties for Different Types of Burglary Charges
Burglary is a felony offense classified according to the offense’s specific circumstances, as follows:
- burglary is a first degree felony when an offender:
- causes damage to a dwelling or structure over $1,000;
- causes damage to a dwelling or structure with a motor vehicle;
- becomes armed with explosives or a dangerous weapon within the premises;
- commits an assault or a battery;
- burglary of a dwelling, an occupied structure or conveyance, or an authorized emergency vehicle is a second degree felony; and
- burglary of an unoccupied structure or conveyance is a third degree felony.
The penalty for specified theft and burglary offenses is reclassified when a person commits the offense during a declared state of emergency (SOE) and the perpetration of the offense is facilitated by conditions arising from the emergency.
Conditions arising from the emergency are defined to include 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.
Under Florida law, the specified penalties for theft or burglary offenses committed during a state of emergency are increased as follows:
- second degree felony burglary is reclassified as a first degree felony and the offense is reranked one level higher; and
- third degree felony burglary is reclassified as a second degree felony and the offense is reranked one level higher.
Effective on n April 19, 2021, the Florida legislature passed statutes that reclassifies specified theft and burglary offenses committed during a riot or an aggravated riot, when the commission of the crime is facilitated by conditions arising from the riot, as follows:
- second degree felony burglary is reclassified as a first degree felony, and the offense is reranked one level higher; and
- third degree felony burglary is reclassified as a second degree felony, and the offense is reranked from a Level 4 to a Level 5.
Read more about the different ways a burglary can be classified including:
- Burglary as a Third Degree Felony
- Burglary as a Second Degree Felony
- Burglary as a First Degree Felony
Burglary to a conveyance or burglary to an unoccupied structure is a third-degree felony that is punishable by up to five (5) years in Florida State Prison. This form of burglary is the most common type of burglary crime charged in the State of Florida.
Level 4 – The types of burglaries that are classified as a Level 4 offense for purposes of the criminal punishment code include:
- 810.02(4)(a) 3rd degree – Burglary, or attempted burglary, of an unoccupied structure; unarmed; no assault or battery;
- 810.02(4)(b) 3rd degree – Burglary, or attempted burglary, of an unoccupied conveyance; unarmed; no assault or battery;
- 810.06 3rd degree – Burglary; possession of tools.
The offense is enhanced to a second-degree felony, which is punishable by up to fifteen (15) years in Florida State Prison, if at the time of the commission of the burglary, the dwelling, structure of conveyance is occupied.
Level 6 – The types of burglaries that are classified as a Level 6 offense for purposes of the criminal punishment code include:
- 810.02(3)(c) 2nd degree – Burglary of an occupied structure; unarmed; no assault or battery.
Level 7 – The types of burglaries that are classified as a Level 7 offense for purposes of the criminal punishment code include:
- 810.02(3)(a) 2nd degree – Burglary of an occupied dwelling; unarmed; no assault or battery;
- 810.02(3)(b) 2nd degree – Burglary of an unoccupied dwelling; unarmed; no assault or battery;
- 810.02(3)(d) 2nd degree – Burglary of an occupied conveyance; unarmed; no assault or battery; and
- 810.02(3)(e) 2nd degree – Burglary of an authorized emergency vehicle.
The offense of burglary is enhanced to a first-degree felony which is punishable by up to thirty (30) years in Florida State Prison if any of the following elements are proven:
- the defendant entered a dwelling or structure; and
- uses a motor vehicle to assist in committing the offense (sometimes called the “smash-grab-dash” burglary); or
- causes damage to the dwelling or structure or property inside in excess of $1,000.00.
Burglary of a dwelling with an assault or battery is a first-degree felony that is punishable by life in prison. The offense is a level 8 offense that requires a minimum of 74 points on the criminal punishment code scoresheet.
Level 8 – The types of burglaries that are classified as a Level 8 offense for purposes of the criminal punishment code include:
- 810.02(2)(c) 1st degree – Burglary of a dwelling or structure causing structural damage or $1,000 or more property damage.
Burglary – a First Degree Felony Punishable by Life
In pertinent part, section 810.02(1)(b)(1), Florida Statutes, defines the crime of burglary as “[e]ntering a dwelling … with the intent to commit an offense therein.” Id. Section 810.02(2) provides, again in pertinent part, that burglary is a first-degree felony punishable by life imprisonment “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.”
Level 8 – The types of first degree burglaries that are first degree felonies punishable by life are each classified as a Level 8 offense for purposes of the criminal punishment code including:
- 810.02(2)(a) 1st degree – Punishable by Life, Burglary with assault or battery;
- 810.02(2)(b) 1st degree – Punishable by Life, Burglary; armed with explosives or dangerous weapon.
In other words, burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment, if, in the course of committing the offense, the offender makes an assault or battery upon any person. § 810.02(2)(a), Fla. Stat.
Burglary with assault or battery requires proof beyond all reasonable doubt that the defendant did the following:
- entered a dwelling, a structure, or a conveyance with the intent to commit an offense therein; and
- making an assault or battery upon any person with a dangerous weapon.
“Smash and Grab” Burglary
The term “smash and grab” burglary refers to a crime charged under Section 810.02(2)(c)1., F.S., which prohibits committing a burglary, if, during the course of committing the burglary, the person:
- 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 burglary; and
- thereby damages such dwelling or structure.
A smash and grab burglary is classified as a first degree felony punishable by a term of years not exceeding life imprisonment.
Burglary by Impairing Telephone or Power
In addition to the burglary charge, a person can be charged with impairing or impeding telephone or power transmission to a dwelling, which can be charged as a felony of the third degree, which is punishable by up to five years in Florida State Prison.
The elements of impairing or impeding telephone or power transmission to a dwelling to facilitate or further a burglary pursuant to § 810.061, Fla. Stat., require proof beyond all reasonable doubt of the following elements:
- The defendant committed one of the following acts:
- impeded or impaired the power or telephone transmission to a dwelling;
- impaired equipment necessary for power or telephone transmission to a dwelling;
- damaged a line or wire that transmitted power or telephone service to a dwelling.
- The defendant did the act for the purpose of facilitating or furthering the attempted commission or commission of a burglary of that dwelling.
The definition of burglary is defined in instruction 13.1 and the definition of attempt is defined in instruction 5.1.
Pursuant to § 810.011, Fla. Stat., the term “impaired” means to be diminished, damaged, or weakened. The term “impeded” means to slow something down or prevent activity from making progress at its previous rate. The term “facilitate” means to help or assist, or to make something possible or easier.
The standard jury instructions for impairing or impeding telephone or power to a dwelling to facilitate or further a burglary pursuant to § 810.061, Fla. Stat., are found in Chapter 13.21 of Florida’s Standard Jury Instructions. The standard jury instructions for this offense were adopted in 2007 [953 So. 2d 495] and amended in 2018.
Traveling Across County Lines to Commit a Burglary
Under Section 843.22, F.S., the crime of burglary may be reclassified one degree higher and re-ranked one level above the ranking specified in the offense severity ranking chart (OSRC) when the person committing the burglary travels:
- any distance with the intent to commit the burglary in a county that is not his or her county of residence; and
- attempts to track items stolen in the burglary for the purpose of thwarting law enforcement.
Under Section 843.22(1)(a), the term “county of residence” means the county in which a person resides within Florida, and evidence of a person’s county of residence may include:
- the county in which the person is employed;
- the county in which the person is enrolled in school or any educational institution;
- the county in which the person’s motor vehicle is registered;
- records of a lease agreement for residential property;
- records of real property or mobile home ownership; and
- the address on the person’s driver’s license or state identification card.
When the crime is reclassified under s. 843.22, F.S., the accused cannot be released on bail until after they appear for a first appearance hearing and a court determines the bond amount and pre-trial release conditions.
When the enhancement was first enacted, prosecutors often had problems proving that an offender traveled out of the county with the intent to commit a burglary and that the purpose of his or her travel was to thwart law enforcement attempts to track stolen items.
Effective October 1, 2022, the Florida legislature enacted HB 6037 which removed any requirement under Section 843.22, F.S., that an offender’s travel must be for the purpose of thwarting law enforcement attempts to track the items stolen during a burglary. As a result, many expect more burglary offenses to be subject to these enhanced penalties.
Statistics on Burglary Crimes in Florida
According to the 2017 Crime in Florida Report Abstract, 88,778 UCR burglary offenses were reported. The Florida UCR program identified 16,463 people arrested arrests for burglary in Florida that same year.
Out of those arrested for burglary, 4,059 were juveniles and 12,404 were adults. For 2017, 31,411 residential burglaries occurred during the day, 14,804 residential burglaries occurred at night, and 16,837 residential burglaries occurred at an unknown time.
Florida Statute Section 810.02 – Visit the website of the Florida legislature to find the statutory language for Section 810.02, Florida Statute, including the elements of the offense, the different penalties for burglary, and the definitions of terms used in the statutory scheme.
FDLE’s Definition of Burglary – Visit the FDLE website to find the Florida Uniform Crime Reports (UCR) definition of burglary as the “unlawful entry of a structure to commit a felony or a theft” including the “attempted forcible entry.” Keep in mind that a burglary from a conveyance or within the curtilage is counted as Larceny by UCR definition. Find information on Florida’s burglary statute in Section 810.02 and prohibitions in impairing telephone or power to a dwelling to facilitate a burglary under Section 810.061.
Finding a Lawyer for Burglary Charges in Tampa, FL
If you or a loved one has been arrested for the serious offense of burglary, contact an experienced attorney to discuss your case. At the Sammis Law Firm, we understand the serious penalties that accompany a burglary charge.
We also represent clients for the related offense of possession of burglary tools under § 810.06, Fla. Stat., which requires proof that the defendant:
- intended to commit a burglary or trespass;
- had in his possession a tool or implement that he intended to use, or allow to be used, in the commission of the burglary or trespass; and
- did some overt act toward the commission of a burglary or trespass.
The statute of limitations comes into play in many burglary cases, although Section 775.15 now contains a tolling provision for burglary cases where the defendant’s identity is discovered through a DNA match.
We represent clients charged with burglary in Tampa in Hillsborough County, FL, and the surrounding areas of St. Petersburg and Clearwater in Pinellas County, New Port Richey and Dade City in Pasco County, Winter Haven and Bartow in Polk County, and Brooksville in Hernando County.
Call us today at (813) 250-0500 to discuss possible defenses to the charges and ways to fight the charges.
This article was last updated on Wednesday, September 14, 2022.