Imagine you are at an event, a gala or charity. You have permission to be there; you paid for a ticket. However, once at the event, you see something valuable and decide to take it. Soon after that, you realize your mistake and try to return the item but its too late because an usher has seen you. Have you committed burglary? An ambitious prosecutor may try to make it happen, and therefore you could face significant penalties. This article will revisit this example below.

Burglary is a crime against property and is specifically designed to punish individuals who enter a dwelling or other structure with the intent to commit a crime. However, burglary is also much broader than that simple Black Law definition. This post will go over how Florida defines and applies burglary (including all of the specific elements of the crime); defenses you can raise; the penalties you could face; and the potential impact a conviction for burglary could have on your personal and professional life.

Crime Generally

Crimes can be divided into two general categories: crimes against people and crimes against property (and, occasionally, “victimless” crimes against society – e.g., prostitution and solicitation). Crimes against people include everything from mundane bar fights resulting in assault and battery charges and charges for serious crimes such as homicide or robbery. Crimes against property are those that are primarily directed toward property and do not involve people. For example, larceny (theft) is stealing property from another and burglary is stealing property from another while entering a building.

The division of crimes might seem artificial because theft and burglary are still against people since you are stealing from another person. However, the clear dividing line is that no human was a specific victim or target in the commission of the crime.


All crimes are composed of “elements.” Elements refer to the individual acts the prosecutor must prove in order to convict you of said crime. To establish each element, the prosecutor will need to connect specifically alleged facts (i.e., pieces of evidence) to each element. Once there are “facts” for each element, the prosecution has met its burden, and you may or may not be convicted by the jury. As will be discussed more fully below, you can attack the merits of the prosecution by undermining one or more of the elements. Therefore, if the prosecution is unable to connect a fact to every element – the jury cannot find for conviction as a matter of law.

Section 810.02 Florida Statutes defines burglary as the following: the defendant (1) enters (2) a dwelling, structure, or conveyance; (3) that is owned or in the possession of another person; and (4) upon entering the building the defendant has an intent to commit a crime inside the building. Burglary also includes entering a building with permission (either express or implied) and either (a) enters the building with the hidden intent to commit a crime; (b) after permission is withdrawn, stays inside the building to commit a crime; or (c) intends commit a forcible felony (i.e. a violent felony – so burglary isn’t limited to your typical crimes against property). This next section will go over each of these elements.

Dwelling, Structure, Conveyance

A dwelling refers to a person’s home or residence. A dwelling can include your standard buildings like single-family homes and condominiums. However, a dwelling may also include attached garages, outdoor tents, motor-homes, and other non-traditional “dwellings.” It all depends on the facts of the situation. Finally, a dwelling can also refer to motel and hotel rooms because those can act as temporary or transitory homes. Contrast these “dwellings” with people live out of their cars (as opposed to a motor home) which may not be treated as a dwelling. However, you should consult with your attorney if you believe the structure you entered shouldn’t count as a dwelling (whether it is a dwelling will matter more below in the “penalties” section as burglaries into someone’s home are treated more harshly than burglaries into commercial structures).

Structures refer to all other buildings; in general, it refers to commercial and industrial structures. A structure is any generic building with a roof and walls. It can include permanent and temporary structures. For example, it includes warehouses and department stores, and it includes outdoor tents with roofs and some sort of fencing.

Finally, a conveyance refers to methods of conveyance (i.e., planes, trains, and cars). So yes, breaking into a person’s car or boat is also a type of burglary. Think about conveyance as extensions of your everyday life – you spend the most time at your job, in your house, and your car. Burglary punishes crimes that are committed against those three places.

“Entering” a Structure

Entering doesn’t mean your body fully enters the structure, dwelling, or conveyance. Rather, enter includes any part of your body enters the building or vehicle. Think about it logically; it couldn’t be limited to full entry of your body because burglary includes crimes against vehicles – so smashing a window and reaching inside a car counts as burglary. Furthermore, burglary also includes using objects to “enter” the home. A classic example used in schools is the criminal who uses a fishing pole to reach through a window and lift a piece of jewelry out of a house. In this case, the defendant’s body remains outside the dwelling, but he is still guilty because he used a tool to enter the home.

Criminal Intent at the Time of Entering

At the time of entry refers to you have the intent to a crime when you “enter” the dwelling or structure. So, to return to the example in the introduction, if you had entered the charity with the intent to steal a specific item or any item – then you would be guilty of burglary because you would have had the intent upon entering the structure. However, if it was more opportunistic, i.e., you had no intent but saw the item and decided to take a chance – then you haven’t committed burglary.

However, for practical purposes, these distinctions are academic because the prosecutor will infer criminal intent based on your actions. The prosecutor will likely argue that you had the intent to commit a crime upon entry based on the fact that you did commit a crime. You can argue that it was opportunistic (which isn’t the most relatable or appealing defense) – not planned. A criminal defense attorney can go over defense strategies.

Absent these scenarios; the prosecution may also prove intent because of other external factors. For example, if the police find building layout or plans, or other indications that there was preparation prior to committing the crime – those are strong facts in favor of intent. Furthermore, the prosecution may argue intent based on the manner of your clothing and tools. For example, if you were arrested with a lockpicking kit or wearing all black, wearing gloves, and other items that seem to indicate an intent to commit a crime or break into a building.

Alternative Scenarios for Burglary

There are three other ways you can be convicted for burglary:

  • You gain entry to a building with permission and secretly remain inside to commit a crime (i.e., the classic staying inside a store after it closes to steal some stuff).
  • You gain entry to a building with permission and, after permission is withdraw, you remain with the intent to commit a crime (i.e., some eject you from the building, but you duck off to the side and hide inside the building to commit a crime).
  • Finally, you gain entry to a building with permission and remain inside to commit a forcible felony (i.e., a felony against a person that is violent).

These alternative scenarios deal fill in the gaps left in the primary statute. For example, you can’t evade a charge for burglary if you initially have permission but hide overnight in a building to commit the crime later or exceed the grant of permission (i.e., you were permitted to enter for one reason but did so only with the surreptitious intent to commit a crime).


As stated above, and more fully discussed here, you can raise several defenses to burglary. The easiest defenses are one that counter-act one of the elements of the crime (i.e., intent, enter, etc.). Defenses can either (1) attack the prosecution case or (2) provide an explanation for the crime that justifies or explains it. This section will go over some typical defense (this list is indicative – not exhaustive; your criminal defense attorney can go into greater detail upon reviewing the facts of your case).


One frequently raised defense is that you had permission to enter the building or vehicle. If you enter the building with consent – then anything you do inside could be considered an extension of that consent. However, as the alternative scenarios make clear if you exceed the grant of permission or stay longer than consented to – then you could still be convicted for burglary.

The best form of permission is if you were hired specifically to “generically” commit a crime. For example, you were hired to test security or some other action that might generally be considered a crime but isn’t because of your specific contract (and because you did not have the intent to commit the crime – only to test the security). Consent is frequently raised but due to the alternative burglary theories – prosecutors can also overcome this defense.


Another common issue is positive evidence identifying you as the person who entered the building. The prosecution cannot build a case against you if she cannot positively identify you as the person who entered the building. These scenarios typically come up if you enter a building that is unoccupied and there isn’t security footage, your face is obscured, or some other reason why you can’t be identified. Rather, the prosecutor might rely on other evidence such as finding some of the stolen goods in your possession – but having stolen goods and being the person who stole them are two different issues.

No Criminal Intent

As stated above, criminal intent is inferred based on your outside actions and items in your possession. If you are caught with a burglar’s kit and wearing black clothes – the prosecution will infer that you had criminal intent when entering a building. However, as stated above, if you had no intention of committing a crime – then you cannot be convicted. To re-use the example above, if you never intended to commit a crime but only to test security (or didn’t realize what you were doing was a crime – maybe you picked up a bag thinking it was yours), then you can’t be convicted of burglary.

Implied Consent

Similar to consent discussed above, individual buildings are open to the public (i.e., commercial buildings), and therefore you had implied consent to enter the building. This defense matters because burglary requires you do not have consent (or to remain hidden after consent is withdrawn) and then commit a crime. But, if you enter a department store with the intent to commit a crime and do commit a said crime (i.e., stealing a shirt), you aren’t guilty of burglary but rather a lesser form of larceny which is not nearly as serious a charge as burglary.

You may begin to notice that many of these defenses aren’t about proving your innocence but of challenging the charge of burglary. If you had permission to enter and then committed a crime – you shouldn’t be charged with burglar but, rather, a lesser offense.

Mistake as to Whereabouts

If you didn’t realize you were in another person’s dwelling or building – then you didn’t enter the building with the intent to commit a crime. For example, if you walked into the wrong office and began using their supplies; an ambitious prosecutor might argue you lacked permission and stole office supplies and therefore should be charged with burglary. However, you could counter that you didn’t realize you weren’t in your office and therefore didn’t realize you were stealing supplies.

Mistaken Belief as to Permission

Similar to mistaken whereabouts, you might also mistakenly believe you had permission. If you can point to evidence showing you had permission (e.g., an old listing for a home which you didn’t realize was sold) and enter a home and start eating cookies. Technically, you stole the cookies, and the prosecutor might argue that you entered the dwelling without permission. But, if you believed it was on a valid listing, then you didn’t have the intent to commit a crime, and it was a simple mistake.

Inadequate Withdrawal of Permission

Finally, if the person in possession of the building wasn’t clear in withdrawing their permission – you might not have realized you stayed longer than you were permitted. For example, if you are at a wedding reception and are told that you are making a scene and should leave, but not that you must leave – you might reasonably believe that you are being told to sober up and stop behaving respectfully.


The penalties you face depends on the severity of the burglary. There are three degrees of felony; this section will go over each degree; how you can be charged with a more severe degree; and the penalties for such resulting charge.

You should note that all of these crimes are felonies. Felonies are punishable by time in prison that exceeds one year. While, generally, misdemeanors are more minor crimes punishable by less than one year in jail (not prison). Jails are located in or near cities and are designed for temporary hold (they are typically less “secure” than prisons). Conversely, prisons are for long-term holds and much more substantially restrict your freedom and movement.

First Degree Burglary

You commit a burglary in the first degree if you do any of the following:

  • Commit a battery or assault on another person (i.e., you attack or hurt them);
  • You enter the building or vehicle with a weapon (including explosives);
  • You use a vehicle to assist you in committing the crime such that the vehicle damages the building (i.e., driving a car into a jewelry store); or
  • You cause over $1,000 in damage to the building (like using explosives to blow a wall).

You face up to life in prison for burglary in the first degree. You can see, each of these scenarios is extreme and serious. If you hurt a person, severely damage the building, or use a weapon – you can be charged in the first degree.

Second Degree Burglary

You commit a burglary in the second degree you don’t commit a crime against a person, don’t carry a dangerous weapon, and enter a building in the following scenarios:

  • Enter a dwelling while another person is there;
  • Enter a dwelling while another person isn’t there (the distinction goes to how much time is spent in prison or on probation);
  • Enter a structure, and another person is there; or
  • Enter a vehicle, and another person is there.

Notice that dwellings are treated differently than other structures or conveyances. The law specifically protects dwellings, therefore, any burglary involving a dwelling is automatically a second-degree felony – even if no one is present in the home. Contrast that with burglaries against other buildings or conveyances which are only second-degree if another person is there. Contesting whether a building is a dwelling or not can significantly reduce the penalties you face.

You face up to 15 years in state prison (not jail) or 15 years of probation and a $10,000 fine.

Third Degree Burglary

A burglary is committed in the third-degree if you enter:

  • A building (not a dwelling) and another person isn’t there; or
  • A conveyance which is empty of people.

If you are convicted of burglary in the third degree, you face up to five years in prison or on probation and a $5,000 fine.

Other Penalties

However, the penalties you face aren’t limited to serving time and paying a fine. You also face a number of collateral issues that could impact your professional and civic life.

Significantly, you lose many of your civil rights. Ordinarily, as part of any probation or early release deal, you must surrender your fourth amendment rights against search and seizure which means the police can do random spot checks on your car, person, and home, and you have no recourse.

You may also lose your state license (if you have one). Keep in mind that state licenses include everything from a license to practice law or medicine and esthetician or hair stylist licenses. If you have a license, the state licensing board may reject your renewal application.

You are also barred from holding public office you are a convicted of a felony. You also lose the right to vote in many situations.

Moreover, your arrest and conviction are public records, therefore, applications for apartments, to join an HOA, or get a job could all be impacted because this record will come up and you could be barred or rejected due to your criminal history.

Finally, if you are planning on going to school – you may be ineligible to receive state and federal aid due to your felony conviction.

The price of a criminal conviction can reverberate for years throughout your life. Your problems don’t end when you are released from prison and complete probation. You will have to claw your way out of the issues created by a criminal conviction for years. You will likely have to engage in post-conviction motions to clear your name and ultimately restore your position which is also more money and time to overcome these issues.

Help Finding a Criminal Defense Attorney Near Me

Were you arrested? Are you facing criminal charges? If you are, then you need to call Arnold Law at 904-264-3627. The attorneys at Arnold Law have decades of experience representing in a broad range of criminal matters including battery, drug offenses, DUI/BUI, and theft, and in assisting clients in post-conviction or plea proceedings, including expungements and addressing probation violations. If you are facing a charge for burglary or some other criminal matter, please do not hesitate to call Arnold Law today!



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