Is burglary always a felony in Florida?

Burglary in Florida is not about breaking in. It is about entering, or in some cases staying in, a dwelling, a structure or a conveyance with the intent to commit an offense inside (s. 810.02(1)). No force is required, and the intended offense can be anything, not only theft. How Mr. Mead defends these cases is on our burglary defense page. The other charges he handles are listed under criminal defense.

How is a burglary charge put together, step by step?

1. The place. Is it a dwelling (a building or conveyance with a roof designed for people to sleep in, with its porch and curtilage), a structure (any roofed building with its curtilage) or a conveyance (a car, boat, trailer, aircraft or railroad car)? (s. 810.011(1) to (3)). Taking apart any part of a conveyance counts as entering it.
2. The entry. Entering without permission when the place is not open to the public, or, even after a lawful entry, remaining secretly, staying after permission was withdrawn, or staying to commit a forcible felony (s. 810.02(1)(b)).
3. The intent. The State must prove intent to commit an offense inside. Proof that someone entered "stealthily and without consent" is prima facie evidence of that intent (s. 810.07).
4. Who was inside. Whether another person was present raises a structure or conveyance burglary from third to second degree (s. 810.02(3), (4)).
5. What happened inside. An assault or battery, becoming armed, or damage over $1,000 raises it to first degree (s. 810.02(2)).
6. The court. Every burglary is a felony, so the case is filed in circuit court and scored on a sentencing scoresheet.

What degree is each kind of burglary?

The level is the offense's rank on the chart in s. 921.0022, which drives the scoresheet explained in how a Florida felony sentence is calculated. Burglary committed during a riot or a declared state of emergency, when those conditions helped, is raised one degree (s. 810.02(3), (4)). The maximums for every degree are in our chart of Florida criminal penalties.

Why does "dwelling" matter so much?

A dwelling burglary is a second-degree felony even when nobody is home, while the same entry into an empty office or warehouse is third degree. The definition reaches further than many people expect: an attached porch, a garage that is part of the house, and the curtilage, the land immediately around the home, are part of the dwelling (s. 810.011(2)). A motor home or a boat designed for sleeping can be a dwelling too. Two lasting consequences follow. Burglary of a dwelling is on the list of offenses that can never be sealed or expunged, and a plea with adjudication withheld counts as a conviction for that rule (s. 943.0584(1), (2)(q)). And burglary is a "forcible felony" under s. 776.08, which matters for bond, for some diversion programs and for self-defense law.

What is the difference between burglary and trespass?

The difference is intent. Trespass in a structure or conveyance is entering or staying without permission, or refusing to leave when told to, with no proof of intent to commit a crime inside (s. 810.08(1)). It is a second-degree misdemeanor, a first-degree misdemeanor if someone was inside, and a third-degree felony only if the person was armed (s. 810.08(2)). Because intent is often the weakest part of the State's case, whether the evidence supports burglary or only trespass is one of the most important questions in many of these cases. Carrying a tool intended for a burglary or trespass is a separate third-degree felony (s. 810.06).

How do Palm Beach and Broward prosecutors handle burglary cases?

In Palm Beach County, felony arrests go first to the State Attorney's Felony Intake Unit, six attorneys who review the evidence and decide what, if any, charges to file. The office says they weigh the strength of the evidence, the credibility of witnesses, the person's record and "various diversion programs that may be available and appropriate." Burglaries are among the cases its Felony Division lists. The first days of a Palm Beach case are described on the Palm Beach County jail and first appearance page.

In Broward, the State Attorney's published programs treat burglary carefully. Its felony pretrial intervention program is for qualifying third-degree felonies and lists attempted residential burglary as not eligible. Its OIC job-training diversion is for nonviolent third-degree felonies, but a single count of attempted burglary or curtilage burglary of a dwelling that qualifies for first-time prison is "reviewed for eligibility on a case-by-case basis." Its felony mental health diversion excludes some burglary of a dwelling charges. None of these is a right, and each needs the State's approval. The Broward courthouse steps are on the Broward Central Courthouse page.

What changes the answer?

• Consent and public access. Entering a store during business hours, or a place one was invited into, is not burglary by entry; the State must then prove a qualifying "remaining" (s. 810.02(1)(b)2.).
• Proof of intent. The stealthy-entry inference in s. 810.07 is only prima facie evidence; the circumstances of the entry can explain it.
• Occupancy. Whether another person was actually inside at the time moves structure and conveyance cases between third and second degree (s. 810.02(3), (4)).
• Weapons and firearms. A dangerous weapon makes it first degree. If the person actually possessed a firearm, s. 775.087(2) requires a minimum prison term: 10 years for most burglaries, 3 years for burglary of a conveyance.
• Damage. More than $1,000 in damage to a dwelling or structure, or using a vehicle to damage it, makes it first degree (s. 810.02(2)(c)).
• What was taken. A theft inside is usually charged separately, and its own degree is explained in when theft becomes a felony in Florida.
• Substance abuse. A third-degree burglary counts as a "nonviolent felony" for the pretrial substance abuse program in s. 948.08(6), which can open a drug court track for an eligible person.

A worked example

For example, take a hypothetical 19-year-old in Delray Beach accused of opening an unlocked parked car at night and taking loose change and sunglasses. Entering an unoccupied conveyance with intent to steal is third-degree burglary, level 4, with a 5-year maximum, plus a petit theft count. If the State could not prove intent when he opened the door, the evidence might fit only trespass in a conveyance, a misdemeanor. If the car had been parked in the attached garage of a house, the same act could be charged as burglary of a dwelling, a second-degree felony that could never be sealed. And if a friend in the passenger seat had been inside the car, the burglary would be of an occupied conveyance, second degree. This illustration shows how the statute sorts the facts; it is not a prediction for any case.

Common mistakes people make

• Assuming that an unlocked door or no damage means it cannot be burglary.
• Explaining to police why you were inside; statements are often the only evidence of intent.
• Not realizing that a garage, porch or fenced yard can make it a dwelling case.
• Accepting a plea to burglary of a dwelling without knowing it can never be sealed, even with a withhold.
• Missing diversion windows, such as Broward's 45-day felony PTI application deadline after arraignment.
• Contacting the property owner to apologize or offer payment without advice.

What to do this week

1. Get the arrest affidavit and note whether the charge names a dwelling, structure or conveyance, and which subsection.
2. Write down who gave you permission to be there, if anyone, and any messages that show it.
3. Identify any video, doorbell camera or phone location data that shows when and how you entered.
4. Follow every release condition, including any no-contact or stay-away order for the property.
5. List your prior record, since it affects the scoresheet and diversion eligibility.
6. Speak with a defense attorney before arraignment so diversion deadlines are not missed.

Frequently asked questions

Is breaking into a car a felony in Florida?

Yes. Entering an unoccupied car with intent to commit an offense is a third-degree felony, and an occupied car is second degree (s. 810.02(3)(d), (4)(b)). Without proof of intent, the facts may fit trespass instead.

Can it be burglary if I was invited in?

Yes, in limited cases: staying secretly with intent to commit an offense, staying after permission was withdrawn, or staying to commit a forcible felony (s. 810.02(1)(b)2.).

Is burglary a violent crime?

Florida lists burglary as a forcible felony (s. 776.08), even when no one was hurt. That label affects bond, some diversion programs and other rules.

Can a burglary charge go to diversion?

Some third-degree burglaries may be considered; Broward's felony PTI is for qualifying third-degree felonies and excludes attempted residential burglary. Details are in pretrial diversion in Palm Beach and Broward.

Can a burglary be sealed?

Burglary of a dwelling cannot (s. 943.0584(2)(q)). Other burglaries depend on the outcome and the person's record; see our page on sealing and expunction eligibility.

What happens at the first court date?

A judge reviews probable cause and sets release conditions within 24 hours of arrest. The sequence is described in the first 48 hours after an arrest.

How can Mr. Mead help?

Mr. Mead's practice is devoted entirely to criminal defense, with more than three decades in South Florida courts. In a burglary case, the definition of the place entered, the evidence of intent and whether anyone was inside often decide the degree, so they are worth examining before any decision. The office is in Boca Raton, Spanish and Portuguese are spoken, and you can call 24 hours.

Every case is different, and no result can be promised. If you are charged with burglary, a confidential call to (561) 362-6677 is a sound first step.

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