Applicable Florida Statute
Florida Statute section 810.02 provides as follows:
- (1)(a) For offenses committed on or before July 1st, 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 1st, 2001, "burglary"means: 1. Entering a dwelling, 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a. Surreptitiously, with the intent to commit an offense therein; b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or c. To commit or attempt to commit a forcible felony as defined in s. 776.08.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 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 o structure; or 2. Causes damage to the dwelling or structure, or to property within the dwelling or structure in excess of $1,000.00.
- (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 or does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a: (a) Dwelling, and the 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; (e) Authorized emergency vehicle, as defined in s. 316.003; or (f) Structure or conveyance when the offense intended to be committed therein is theft of a controlled substance as defined in s. 893.02. Notwithstanding any other law, separate judgments and sentences for burglary with the intent to commit theft of a controlled substance under this paragraph and for any applicable possession of controlled substance offense under s. 893.13 or trafficking in controlled substance offense under s. 893.135 may be imposed when all such offenses involve the same amount or amounts of a controlled substance. 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 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 and 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. 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 is facilitated by conditions arising from the emergency, the burglary is a felony of the second 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.
Applicable Jury Instructions
Florida standard jury instruction 13.1 provides as follows:
- Give if the information charges entering with the intent to commit an offense:
To prove the crime of burglary, the state must prove the following [two][three] elements beyond a reasonable doubt:
(1) Defendant entered a [structure][conveyance] owned by or in the possession of (person alleged).
(2) At the time of entering the [structure][conveyance], the defendant had the intent to commit [an offense][(the crime alleged)] in that [structure][conveyance].
The offense intended cannot be trespass or burglary.
Give element (3) only if the defendant meets his or her burden of production that he or she had an invitation or license to enter, or that the premises were open to the public. See State v. Hicks, 421 So.2d 510 (Fla. 1982), and State v. Waters, 436 So.2d 66 (Fla. 1983).
(3) [The defendant was not [licensed][invited] to enter the [structure][conveyance].] [The premises were not open to the public at the time of entering].
If the [license][invitation] to enter was obtained by the defendant's trick or fraud or deceit, then the [license][invitation] to enter was not valid.
If the defendant entered premises that were open to the public, but then entered an area of the premises that he or she knew was not open to the public, the defendant committed a burglary if he or she entered that non public area with the intent to commit [an offense][(the crime alleged)] in that non-public area.
- Give if applicable. § 810.07 Fla. Stat.
You may infer that the defendant had the intent to commit a crime inside a [structure][conveyance] if the [entering][attempted entering] of the [structure][conveyance] was done stealthily and without the the consent of the owner or occupant.
The entry necessary need not be the whole body of the defendant. It is sufficient if the defendant, with the intent to commit a crime, extends any part if his or her body into the [structure][conveyance].
- Give if the information charges remaining with the intent to commit an offense:
To prove the crime of Burglary, the state must prove the following two elements beyond a reasonable doubt:
- The defendant had permission or consent to enter a [structure][conveyance] owned by or in the possession of (person alleged).
- The defendant, after entering the [structure][conveyance] remained therein (Give 2a, 2b, or 2c as applicable)
- (a) surreptitiously and with the intent to commit [an offense][(the crime alleged)] inside the [structure][conveyance].
- (b) after permission to remain has been withdrawn and with the intent to commit [an offense][(the crime alleged)] inside the [structure][conveyance].
- (c) with the intent to commit or attempt to commit a [forcible felony][(the forcible felony alleged)] inside the [structure][conveyance].
The offense intended cannot be trespass or burglary. Forcible felonies are listed in § 776.08 Fla. Stat.
The intent with which an act is done is an operation of the mind and, therefore, is not always capable of direct and positive proof. It may be established by circumstantial evidence like any other fact in a case. Even though an unlawful [entering][remaining in] a [structure][conveyance] is proved, if the evidence does not establish it was done with the intent to commit [an offense] [(the crime alleged)], the defendant must be found not guilty of burglary.
- Proof of possession of stolen property
Proof of possession by an accused of property recently stolen by means of a burglary, unless satisfactorily explained, may justify a conviction of burglary if the circumstances of the burglary and of the possession of the stolen property convince you beyond a reasonable doubt that the defendant committed the burglary.
- Definitions; give as applicable.
§ 810.011(1), Fla. Stat.
"Structure" means any building of any kind, either temporary or permanent, that has a roof over it, and the enclosed space of ground and outbuildings immediately surrounding that structure.
§ 810.011(3), Fla. Stat.
"Conveyance" means any motor vehicle, ship, vessel, railroad car, trailer, aircraft or sleeping car; and to enter a conveyance includes taking apart any portion of the conveyance.
If you find the defendant guilty of burglary, you must also determine if the state has proved, beyond a reasonable doubt whether, in the course of committing the burglary, the defendant assaulted any person. An assault is an intentional and unlawful threat, either by word or act, to do violence to another, at a time when the defendant appeared to have the ability to carry out the threat and his or her act created a well-founded in the other person that the violence was about to take place.
If you find the defendant guilty of burglary, you must also determine if the state has proved, beyond a reasonable doubt, whether, in the course of committing the burglary, the defendant battered any person. A battery is an actual and intentional touching or striking of another person against that person's will or the intentional causing of bodily harm to another person.
If you find the defendant guilty of burglary, you must also determine if the state has proved beyond a reasonable doubt whether, in the course of committing the burglary, the defendant was armed or armed himself or herself within the [structure][conveyance] with [explosives][a dangerous weapon].
"Explosive" means any chemical compound or mixture that has the property of yielding readily to combustion or oxidation upon application of heat, flame, or shock, including but not limited to dynamite, nitroglycerin, trinitrotoluene, or ammonium nitrate when combined with other ingredients to form an explosive mixture, blasting caps, and detonators.
A "dangerous weapon" is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm. It is not necessary for the state to prove that the defendant intended to use or was willing to use the weapon in furtherance of the burglary in order for a weapon to constitute a "dangerous weapon".
To "arm" oneself during the course of a burglary includes possessing a firearm, whether loaded with ammunition or not, at any time during the course of committing the burglary.
- Structure or conveyance is a dwelling
If you find the defendant guilty of burglary, you must also determine if the state has proved beyond a reasonable doubt whether the [structure][conveyance] [entered][remained in] was a dwelling.
- Definition. Give as applicable.
"Dwelling" means a building [or conveyance] of any kind,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 burglary, a "dwelling" includes an attached porch or attached garage.
- Human being in structure or conveyance
If you find the defendant guilty of burglary, you must also determine if the state has proved beyond a reasonable doubt whether, in the course of committing the burglary, there was another human being in the [structure][conveyance], at the time he or she [entered][remained in] the [structure][conveyance].
- Dwelling or structure with use of a motor vehicle or damage
If you find the defendant guilty of burglary, you must also determine if the state has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) entered a [dwelling][structure] and
- used a motor vehicle an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense, and thereby damaged the [dwelling][structure]; or
- caused damage to the [dwelling][structure][property within the [dwelling][structure]], in excess of $1,000.00.
- Authorized emergency vehicle
If you find the defendant guilty of burglary, you must also determine if the state has proved beyond a reasonable doubt whether the conveyance [entered][remained in] was an authorized emergency vehicle.
- Definition. See § 316.003, Fla. Stat.
An "authorized emergency vehicle" is [a vehicle of the fire department (fire patrol) or police].[an ambulance or emergency vehicle of [municipal departments][public service corporations operated by private corporations][the Department of Environmental Protection, Health, or Transportation]
The definitions of structure, dwelling, and conveyance are different for counties where a state of emergency has been declared under chapter 252. See § 810.011(1), (2), and (3), Fla. Stat.
If you find the defendant guilty of burglary, you must determine if the state has proved, beyond a reasonable doubt whether:
- the burglary was committed within a county that was subject to a state of emergency that had been declared by the governor under chapter 252, the "State of Emergency Management Act"; and
- the perpetration of the burglary was facilitated by conditions arising from the emergency.
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.
§ 810.011(4), Fla. Stat.
An act is committed "in the course of committing" if it occurs in the attempt to commit the offense or in flight after the attempt or commission.
Reclassification of Burglary Offenses
As set forth in Florida Statute § 810.02 (above), certain burglary offenses are subject to reclassification if they are committed during a state of emergency, and the commission of the crime is facilitated by conditions arising from the emergency. Under these circumstances, a burglary of the second degree is reclassified to a first degree felony. A burglary of the third degree is reclassified to a second degree felony. The reclassification significantly increases the otherwise applicable statutory maximum (the top end of the sentencing guideline range). Also, the offense level is increased by one point which, in turn, increases the minimum lawful period of incarceration (the bottom end of the sentencing guideline range). Sentencing in Florida is complicated and this section is meant to provide a general sense of the effect of reclassification. Specific questions should be directed to an experienced St. Petersburg criminal defense lawyer.
Other Potential Sentencing Enhancements
Under the Prison Releasee Re-Offender statute, as set forth in s. 775.082(9)(a), a person who commits (or attempts to commit) an enumerated offense, including either (1) armed burglary; (2) burglary of a dwelling; or (c) burglary of an occupied structure, within three years of release from a state or federal prison, must be sentenced to the statutory maximum. Thus, where a person is charged with armed burglary, the court would have no choice but to sentence the person to life in Florida Department of Corrections upon the entry of a guilty (or no contest) plea, or a finding of guilt by a the jury. Where the person is charged with burglary to a dwelling, the court would be required to sentence the defendant to fifteen years (the maximum penalty for that offense). Sentencing guidelines do not apply in PRR cases.
Under the Habitual Violent Felony Offender statute, as set forth s. 775.084(1)(b), a defendant who has previously been convicted of an enumerated felony, including armed burglary, and the pending felony for which the defendant is to be sentenced was committed either: (a) while the defendant was serving a prison or other sentence that was imposed as a result of a prior conviction for an enumerated felony (including armed burglary); or (b) within five years of the date of conviction of the last prior enumerated felony (including armed burglary), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, parole, or other sentence that is imposed as a result of a prior conviction for an enumerated felony (including armed burglary), whichever is later, will be subject to certain sentencing enhancements. In the case of a life felony or a felony of the first degree, the defendant may be sentenced to life and shall not be eligible for release for fifteen years. In the case of a second degree felony, for a term not exceeding thirty years, and the defendant shall not be eligible for release for ten years. In the case of a felony of the third degree, the defendant may be sentenced to a term not exceeding ten years and shall not be eligible for release for five years.
Under the Three Time Violent Felony Offender statute, as set forth in. s. 775.084(1)(c), the court must impose certain mandatory minimum terms of imprisonment if it finds that (1) the defendant has previously been convicted two or more times of an enumerated felony (or an attempt to commit an enumerated felony - including armed burglary), and (2) the felony for which the defendant is to be sentenced is an enumerated felony (including armed burglary) and was committed: (a) while the defendant was serving a prison sentence or other sentence imposed as a result of a conviction for an enumerated felony (including armed burglary); or (b) within five years of the date of conviction of the last prior enumerated felony (including armed burglary), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, parole, or other sentence imposed as a result of a prior conviction for an enumerated offense (including armed burglary), whichever is later. The court must sentence a three time violent felony offender as follows: in the case of a felony punishable by life, to a term of imprisonment for life; in the case of a felony of the first degree, to a term of imprisonment of thirty years; in the case of a felony of the second degree, to a term of imprisonment of fifteen years; and in the case of a felony of the third degree, to a term of imprisonment of five years.
Under the Violent Career Criminal statute, as set forth in s. 775.084(1)(d), the court must impose certain mandatory terms of imprisonment if it finds that: (1) the defendant has previously been convicted three or more times for an offense in this state that is a forcible felony (including burglary) or other enumerated offense; (2) the defendant has been incarcerated in a state or a federal prison; (3) the primary felony offense for which the defendant is to be sentenced is an enumerated felony (including burglary), was committed on or after October 1st, 1995, and (a) while the defendant was serving a prison or other sentence that was imposed as a result of a prior conviction for an enumerated felony (including burglary); or (b) within five years of the date of conviction of the last prior enumerated felony (including burglary), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, or parole, or other sentence that is imposed as a result of a prior conviction for an enumerated felony, whichever is later. Where such findings are made, the court must sentence the violent career criminal as follows: in the case of a life felony or a felony of the first degree, for life; in the case of a felony of the second degree, for a term of years not exceeding forty with a mandatory minimum term of thirty years imprisonment; in the case of a felony of the third degree, for a term of years not exceeding fifteen, with a mandatory minimum of ten years imprisonment.
Under Florida's 10-20-Life statute, as set forth in s. 775.087, any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, the conviction was for an enumerated offense, including burglary, and during the commission of the offense such person actually possessed a firearm, shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted of aggravated assault, possession of a firearm by a felon, or burglary to a conveyance shall be sentenced to a minimum term of imprisonment of three years if such person possessed a firearm during the commission of the offense. If the person commits an enumerated felony, including burglary, and in the process discharges a firearm, he or she shall be sentenced to 20 years in prison. If the person commits an enumerated felony, including burglary, and causes death or great bodily harm to another by discharging a firearm, he or she shall be sentenced to a minimum of 25 years in prison, and up to life.
Burglary crimes are aggressively prosecuted in the Tampa Bay area and the potential penalties are severe. This is particularly the case where the accused commits an assault, a battery, or is armed during its commission. St. Petersburg criminal defense attorney Donald J. Kilfin can help. Contact our office to discuss your case and all viable defenses.
Defenses To Your St. Petersburg, Clearwater, or Tampa Area Burglary Charge
You have heard the saying that sometimes the best defense is a good offense. The same holds true here. Because burglary charges often carry life altering penalties, immediate intervention by an attorney is crucial. If the person committed the crime, and it appears that the state has sufficient evidence to prove it, pre-filing negotiations become paramount. This is especially the case where the accused person is facing one of Florida's recidivist sentencing enhancements such as the prison releasee re offender enhancement. Recently, I represented a young man who had been released from prison after serving a relatively short sentence. Thereafter, he was accused of opening his neighbor's unlocked car door and taking a gun that was tucked in the center console. As a result, he was arrested for armed burglary. If filed as an armed burglary, the PRR enhancement would have applied and, therefore, he would have been facing a mandatory life sentence. Needless to say, my client and his parents were absolutely devastated. Based on the evidence, I believed that the state could prove the charge if it were to be tried. After much negotiation with the prosecutor, the charge was filed as burglary to an unoccupied conveyance, which avoided the PRR enhancement. While my client was ultimately sentenced to some time in prison, he averted the mandatory life sentence that would have surely resulted without immediate intervention following his arrest. If you are arrested for burglary, and particularly one involving an assault, battery, or firearm, procrastination could prove to be the kiss of death.
Depending on the circumstances, the most viable defense in a burglary case may involve lack of I.D. As with many criminal offenses, burglary is a crime of opportunity. Most people who commit burglaries will take steps to conceal their identity (by, for example, wearing a mask, gloves, and/or by committing the crime at night). If there are no witnesses, there is no forensic evidence linking the suspect to the crime, and the suspect makes no admissions to law enforcement, proof beyond a reasonable doubt may prove difficult. In a recent Tampa case, witnesses could not identify my client as a participant. He was, however, developed as a suspect when his palm print was located on an interior window sill. Based on that identification, police made contact with him which in turn led to the discovery, in his car, of some items taken from the burglarized home. Thus, lack of sufficient ID may not always be a viable defense just because eyewitnesses cannot identify the suspect from a photo pack or lineup. Where ID is a problem, however, the charge may never be filed in the first place.
Another potential defense in burglary cases, depending on the circumstances, is lack of intent. Remember that the crux of a burglary charge is the fully formed intent to commit a crime at the time entry is made (be it a house, boat, car, or shed). If the person does not have the intent to commit a crime at the time of entry, burglary is not likely going to be a viable charge. A few years ago, I represented an older client with no criminal history whatsoever. While at the beach, he became extremely intoxicated (something he rarely did), and stumbled up to a nearby residence. Mistaking it for someone else's house, he began banging on the window pane adjacent to the front door when no responded to his knocking. The pane broke, his hand went into the residence, and made physical contact with the homeowner. He was arrested for burglary battery, and was facing four years to life in prison. The defense in that case was that he lacked the requisite intent to commit a crime in the residence; he was confused about what house he was at based on his level of intoxication. Given his very plausible explanation (which negated the likelihood of any criminal intent), complete lack of criminal history, years of professional service to our community, and genuine sense of remorse for his actions that night, the charge was never filed.
What defenses may or may not be viable is going to depend on the facts and circumstances of the underlying case. Often times, much can be done to help those charged with burglary crimes, particularly when the attorney is retained early on.
Resources
The following is a list of outside sources, prior blog posts, and other website sections on topics related to burglary offenses:
Links
- HG. Org: St. Petersburg Burglary Defense Attorney
- HG. Org: St. Petersburg Assault & Aggravated Assault Defense Attorney
- HG. Org: St. Petersburg Battery & Aggravated Battery Defense Attorney
- HG. Org : St. Petersburg Drug Crimes Attorney
- HG. Org: Florida Sentencing Enhancements Pt. 1: Prison Releasee Re offenders
- HG. Org: Florida Sentencing Enhancements Pt. 2: Habitual Felony Offenders and Habitual Violent Felony Offenders
- HG. Org: Florida Sentencing Enhancements Pt. 3: Three Time Violent Felony Offenders and Violent Career Criminals
- HG. Org: Florida Sentencing Enhancements Pt. 4: 10-20-Life
Blog Posts
- Do I Need a St. Petersburg Criminal Defense Attorney?
- They Never Read Me My Rights - Can My Charge Be Dismissed?
- Inchoate (Incomplete) Crimes: Attempt, Solicitation and Conspiracy
- Florida's Principal Statute: All For One and One For All
- Florida's William's Rule: What Is It and What Does It Mean For My Criminal Case?
- Pre-Trial Release In Florida: The Basics
- Speedy Trial in Florida: An Overview
- Search and Seizure in Florida: An Overview
- Florida Sentencing Guideline Departures: Youthful Offenders
- Florida Sentencing Guideline Departures: Unsophisticated/Isolated/Remorse
- Florida Sentencing Guideline Departures: Need for Restitution
- Florida Sentencing Guideline Departures: Legitimate, Uncoerced Plea Bargain
- Florida Sentencing Guideline Departures: Youth & Inability to Appreciate Consequences
Sections
- Alibi As a Defense to Your St. Petersburg, Clearwater, or Tampa Area Criminal Charge
- Statute of Limitations As a Defense to Your St. Petersburg, Clearwater, or Tampa Area Criminal Charge
- Affecting the Filing Decision
- Pre-trial Diversion
- Withholding of Adjudication
- Plea Negotiations
- Defensive Motions
- Trial
- Sentencing
- Probation Violations
- Violent Felony Offenders of Special Concern
- Assault & Aggravated Assault
- Battery & Aggravated Battery
- Dealing in Stolen Property
- Drug Offenses
- Theft Offenses
- Trespass
The Bottom Line
Burglary offenses are always felonies in the state of Florida. Residential burglary will always score state prison, regardless of other charged offenses or prior record. If an assault or battery is committed in the course of committing the burglary, or if a firearm is used, the maximum penalty is life in prison. Use of a firearm will also invoke the provisions of Florida's 10-20-Life statute, with the following caveat: armed burglary of a conveyance carries a three year minimum mandatory sentence, not ten. Depending on your prior record, and in some cases the date you were released from prison, Florida's recidivist sentencing enhancements may apply. No matter what your circumstances may entail, an experienced St. Petersburg criminal defense attorney can really have a impact on the outcome of your case.
If you are facing a burglary charge in the Tampa Bay area, contact our office for a free initial consultation. Evening and weekend appointments are always available.
Helping Good People Through Difficult Situations
