Burglary and Trespass

A. Burglary

Burglary is a serious felony offense in the state of Florida, carrying severe penalties if an individual is ultimately convicted. Due to the complexity of burglary cases and the potential consequences of a conviction, the skills of an experienced law firm is highly recommended and even encouraged. Burglary is governed by Florida Statute 810.02. Under said statute, burglary can be a first degree felony (punishable by life in prison, unlike other first degree felony offenses, which are typically up to 30 years), second degree felony, or third degree felony—contingent on the underlying facts and circumstances that are unique to the case. Based on the burglary statute, a person convicted of this felony offense faces anywhere from five years in prison to life imprisonment. Again, this is dependent on the underlying facts unique to the case, including if a firearm was used, an assault or battery occurred upon another person in the course of committing the burglary, among other circumstances. The expertise of a highly competent attorney that has experience handling these types of cases is critical when a person is potentially facing life behind bars.

Under Florida law, a person commits burglary by entering a dwelling, structure, or a conveyance with the intent to commit an offense therein. A burglary is also committed if an individual lawfully enters—e.g. they were given consent or permission to enter—a dwelling, structure, or conveyance and they remain therein (a) surreptitiously, with the intent to commit an offense therein; (b) after permission to remain therein has been withdrawn, with the intent to commit an offense therein; or (c) to commit or attempt to commit a forcible felony.

To better understand the crime of burglary, it’s important to understand what the terms dwelling, structure, and conveyance mean. These terms are highlighted under Florida statute 810.011. Under said statute, a dwelling is defined as 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 curtilage thereof.” Common examples of a dwelling are a house or apartment. The curtilage of a house or dwelling is the land immediately surrounding it, including any closely associated buildings and structures. This excludes any associated “open fields” or any closely associated buildings, structures, or divisions that contain the separate intimate activities of their own respective occupants. Burglary of a dwelling includes an attached porch or attached garage.

A structure is defined as any temporary or permanent building, which has a roof, together with the curtilage. Lastly, the term conveyance is interpreted as any motor vehicle, ship, vessel, trailer, aircraft, railroad vehicle or car. Note: to enter a conveyance includes taking apart any portion of the conveyance.

One of the most frequently asked questions we receive involves the entry aspect of burglary. Most people assume that their entire body must enter in order to commit a burglary—nothing could be further from the truth. Under Florida law, an individual commits a burglary if he or she extends any part of their body into the dwelling, structure, or conveyance—together with the intent to commit a crime therein. Additionally, an individual can be charged with burglary even if they do not use forced entry. Simply entering—along with the other elements of the crime—is enough to commit a burglary in the state of Florida.

For example, John extends his hand through the window of Theresa’s house, with the intent to steal her vase, which is sitting on the kitchen table. The police immediately apprehend John before he can enter the house. Under these set of facts, John could be charged with burglary of a dwelling—even though his entire body failed to enter the home.

Although the intended offense is oftentimes theft, it’s important to note that the crime of burglary is not limited to theft. The intended crime may include anything from kidnapping, carjacking, battery, assault, murder, among other crimes. It’s also noteworthy to point out that the intended crime does not need to be accomplished to commit the burglary offense. The entry into a dwelling, structure, or conveyance, in combination with the requisite intent is enough to satisfy the offense.

As previously mentioned, the various degrees of burglary are distinguished by the facts and circumstances of the case. With that said, burglary is a first degree felony, punishable by up to life imprisonment, if in the course of committing the offense, the offender: (1) commits an assault or battery; (2) is armed or becomes armed within the dwelling, structure, or conveyance with explosives or a deadly weapon; or (3) enters an occupied or unoccupied dwelling or structure and (a) uses a motor vehicle as an instrumentality—other than as a getaway vehicle—to help commit the burglary, and damages the dwelling or structure; or (b) causes damage to the dwelling or structure, or to property within the dwelling or structure, costing more than $1,000.

Burglary is considered a second degree felony, with penalties that may include up to 15 years in prison, 15 years of probation, and a $10,000 fine, among other sanctions, if in the course of committing the burglary, the offender does not commit an assault or battery, and is not and does not become armed with an explosive or a deadly weapon, and the offender enters or remains in a: (1) dwelling, and there is another person in the dwelling at the time the offender enters or remains; (2) dwelling, and there is not another person in the dwelling at the time the offender enters or remains; (3) structure, and there is another person in the structure at the time the offender enters or remains; (4) conveyance, and there is another person in the conveyance at the time the offender enters or remains; (5) authorized emergency vehicle, including fire department vehicles, police vehicles, and such ambulances and emergency vehicles of municipal departments, among others; (6) structure or conveyance when the offense intended to be committed therein is theft of a controlled substances.

Lastly, Burglary is considered a third degree felony, punishable by up to five years in prison, five years of probation, and a $5,000 fine, among other sanctions, if the offender enters or remains in a: (1) unoccupied structure; or (2) unoccupied conveyance.

The Joshi Law Firm has defended numerous clients with allegations of burglary against them. Below are some common defenses to a burglary offense that have provided positive results for our clients in the past:

  • Entered or remained with permission or consent from the owner or occupant;
  • Area was open to the public;
    • If the area is open to the public the person technically has implied consent to enter, regardless of their subjective intent. Therefore, the State would need to prove consent was withdrawn to convict for burglary.
    • This defense is not applicable if the business was closed.
    • This defense is not applicable if the person enters an “Employee Only” area.
  • Mistaken identity;
  • Lack of intent to commit a crime therein;
  • Merely being present with the offender who actually commits the crime;
    • The person needs to do an act or say something to encourage or assist the other offender to commit the offense of burglary.
  • Mistake of fact;
    • For example, if an individual enters another person’s home with the intentions of getting back their own property or if they entered thinking they had the owner’s permission to take the item.
  • Among other burglary defenses, including pre-trial and trial defenses.

B. Trespass

Criminal trespass can either be a misdemeanor or felony offense, depending on the unique facts of the case. Generally, criminal trespass is a misdemeanor offense, unless the offender had a firearm or a deadly weapon in the course of committing the criminal trespass—armed trespass. Armed trespass is considered a third degree felony, punishable by up to five years in prison, five years of probation, and a $5,000 fine, among other sanctions. However, as previously mentioned, most criminal trespasses committed by every day people are misdemeanor offenses, which can range from a second degree misdemeanor—less severe—to a first degree misdemeanor—more severe. Regardless, to ensure your rights are protected, you should always consult with an experienced attorney.

In Florida, a person can commit a criminal trespass in one of two ways: (1) trespass in a structure or conveyance; or (2) trespass on property other than a structure or conveyance. Generally, a trespass in a structure or conveyance is a second degree misdemeanor in Florida, with penalties that may result in up to 60 days in jail. However, if an individual is present in the structure where the offender trespassed, it is a first degree misdemeanor. A person convicted of this offense could receive consequences of up to one year in jail, 12 months of probation, a $1,000 fine, among other sanctions. Additionally, a trespass on property other than a structure or conveyance is also a first degree misdemeanor, with penalties that could result in up to one year in jail.

An individual commits a criminal trespass if he or she willfully enters or remains on property, or in a structure or conveyance, without authorization, consent, or permission by the owner or lessee, or by a person authorized by the owner or lessee; or alternatively, is warned by the owner, lessee, or by a person authorized by the owner or lessee, to leave and the offender refuses to do so. In order to be convicted of criminal trespass the individual must have entered or remained willfully. In the state of Florida, willful is interpreted as knowingly and committed on purpose—together with general intent. Therefore, it follows that the defendant does not actually have to intend to trespass or commit an offense. All that is required is that the offender knowingly and purposely entered or remained on the property without permission.

There are numerous defenses to a criminal trespass offense in the state of Florida. Below are some common examples:

  • The offender’s entry was not willful;
  • Express invitation to enter or remain;
  • Implied invitation to enter or remain;
  • Agent of the owner or lessee lacked authority to remove;
  • Lack of notice;
  • Lack of communication to leave;
  • Consent;
  • Area was open to the public;
  • Among other defenses, including pre-trial and trial defenses.

If you have any further questions or want to set up a consultation, please e-mail the Joshi Law Firm at info@joshi-law.com or contact our office at 407-661-1109.

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