Eric J. Dirga, P.A.

A Florida Trial Attorney

Criminal Record Expungements/Sealings, Traffic Defense.

733 West Colonial Drive, Orlando 32801 - 407-841-5555

Burglary

“Burglary” means entering a dwelling, a structure, or a conveyance (vehicle) with the intent to commit a crime while inside, unless the premises were at the time open to the public or the accused was licensed or invited to enter. A burglary is also committed even with a licensed or invited entry if the accused remain inside surreptitiously (secretly) with the intent to commit a crime after the permission to remain inside had been withdrawn or with the intent to commit or attempt to commit a forcible felony.

First Degree Felony Punishable By Life In Prison

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 burglary, the defendant made an assault or battery upon any person, or was or became armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon (firearm, knife, etc.). It is also a first degree felony if the accused entered an occupied or unoccupied dwelling or structure, and used 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 causes damage to the dwelling or structure, or to property within the dwelling or structure in excess of $1,000.

Second Degree Felony Punishable by Up To 15 Years In Prison

Burglary is a felony of the second degree, if, in the course of committing the burglary, the accused entered or remained in a dwelling. It is also a second degree felony if at the time the accused entered or remained in a structure (not a dwelling) there was another person in the structure or if the accused entered or remained in a conveyance (vehicle), and there was another person in the conveyance. Additionally, any burglary of an authorized emergency vehicle or burglary of a structure or conveyance when the offense intended to be committed therein is theft of a controlled substance is a second degree felony.

Third Degree Felony Punishable by Up To 5 Years In Prison

Burglary is a felony of the third degree, punishable by up to five years in prison, if, in the course of committing the burglary, the accused entered or remained in a structure or conveyance and there is not another person in the structure or conveyance at that time.

Enhancements to Burglary Offenses

Any burglary committed within a county that is subject to a state of emergency declared by the Governor after the declaration of emergency is made and the perpetration of the burglary is facilitated by conditions arising from the emergency, the burglary is enhanced by one degree (A second degree felony becomes a first degree felony).

Possession of Burglary Tools

Possessing tools that could conceivably be used in a burglary is a felony. Common burglary tools include spark plugs, tape, gloves, along with more common tools found in most households. Usually this offense is charged when tools are found in close proximity to a person (usually in a vehicle) who is a suspect of a burglary or attempted burglary.

Information Regarding Defenses to Burglary

Area was open to the public. Ducas v. State, 84 So.3d 1212 (Fla. 3d DCA 2012), Miller v. State, 713 So.2d 1008 (Fla. 1999)

Lack of intent to commit a crime after entering. Torres v. State, 82 So.3d 1064 (Fla. 4th DCA 2011)

Failure to charge all elements of crime. Everett v. State, ___ So. 3d ___ (Fla. 5th DCA 2011)

Entry by consent obtained by fraud or deceit is a legal nullity and not a defense to burglary. Lynch v. State, 2 So.3d 47 (Fla. 2008)


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