Understanding Burglary Charges, Degrees, and Legal Defenses from a Florida Burglary Attorney

When you’re accused of burglary in Florida, the charge can feel overwhelming. But not every burglary case is the same. The law outlines several degrees of burglary, and not all result in the same level of punishment. As a Florida Burglary Attorney, I want to help you understand when burglary is charged as a felony, what those felony levels mean, and what defenses we can use to fight the charges you’re facing.

If you're reading this, you or someone you love may already be dealing with a burglary arrest. You might have questions like whether the charge is a misdemeanor or felony, whether it can be dismissed, or what defenses may apply. Let me explain the law in plain language and how a private attorney can make a difference in your future.

What Is Burglary Under Florida Law?

Florida Statutes § 810.02 defines burglary as:

“Entering 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.”

This law makes it clear that burglary doesn't require breaking in with force. Simply entering without permission and intending to commit a crime inside is enough. The type of building, presence of people, and whether a weapon was involved can determine how severe the charge becomes.

There are three primary degrees of burglary under Florida law, and each is considered a felony:

First-Degree Felony Burglary – The Most Serious

A burglary becomes a first-degree felony when:

  • The offender commits an assault or battery during the burglary,

  • Becomes armed within the structure or conveyance, or

  • Causes damage exceeding $1,000 or uses a motor vehicle to commit the offense.

This is punishable by up to life in prison.

Example under the statute:

“If in the course of committing the offense, the offender makes an assault or battery upon any person, or is or becomes armed within such dwelling, structure, or conveyance, or enters an occupied or unoccupied dwelling or structure and uses a motor vehicle to assist in committing the offense, and thereby damages the dwelling or structure, the burglary is a felony of the first degree.”

Second-Degree Felony Burglary – Serious, but Not Life Sentence Eligible

This includes:

  • Unlawful entry into an occupied dwelling, structure, or conveyance without assault, battery, or weapon possession.

  • Entry into an unoccupied dwelling intending to commit a crime inside.

Punishable by up to 15 years in prison.

Third-Degree Felony Burglary – The Least Severe Felony

This typically applies to:

  • Unlawful entry into an unoccupied structure or conveyance with intent to commit an offense.

  • No use of force, weapon, or assault, and no one was present at the time.

Punishable by up to 5 years in prison.

So, Is Burglary Always a Felony in Florida?

Yes, under current Florida law, burglary is always charged as a felony. There is no misdemeanor burglary charge. However, the degree of felony can vary, and a strong defense may reduce the charge or result in dismissal depending on the circumstances.

That’s why having a private attorney is critical. As your defense lawyer, I focus on building a defense that forces prosecutors to prove each element beyond a reasonable doubt. If they can't, we fight for dismissal or a substantial charge reduction.

What Defenses Can Be Raised in a Florida Burglary Case?

Every burglary case is unique, and the right defense depends on the facts. Some defenses that may apply include:

1. Lack of Intent

Burglary requires intent to commit a crime inside the property. If someone enters a property without criminal intent, the charge may not be valid. This can be especially powerful in cases involving misunderstandings or mental health issues.

2. Permission or Invitation

If you were invited onto the property or had a reasonable belief that you had permission to enter, then the “unlawful entry” element may be missing.

3. Mistaken Identity

Surveillance footage and eyewitness testimony are often unreliable. If police or witnesses misidentify you, we challenge the accuracy of the evidence and file motions to suppress faulty identifications.

4. No Crime Committed Inside

You can only be convicted of burglary if there was intent to commit a crime inside. If you entered a structure but didn’t commit or intend to commit a separate crime, we argue the state has failed to meet its burden.

5. Illegal Search or Arrest

If police found evidence during an illegal search or violated your rights during the arrest, we file a motion to suppress. Once key evidence is excluded, the entire case may collapse.

Why You Need a Private Florida Burglary Attorney

Public defenders often carry heavy caseloads and may lack the time or resources to dig deep into your case. As a private defense lawyer, I take the time to review every piece of evidence, evaluate all defenses, and fight for the best result possible. When you're facing a felony, the stakes are too high to gamble with limited legal help.

I’ve helped people in your shoes walk away with their freedom. Let me share one of those stories with you.

Real Case Example: Charges Dismissed After Illegal Entry Found

A client of mine was arrested after entering a home that had been foreclosed on. The home had no residents, and my client was found sleeping there after losing his apartment. Prosecutors charged him with burglary of an unoccupied dwelling, a second-degree felony.

During discovery, I found that law enforcement entered the home without a warrant and discovered my client sleeping. I filed a motion to suppress all evidence gathered from the illegal entry, including my client’s statements made during arrest. The judge granted the motion. With no evidence left, the prosecutor dropped the case.

Had my client gone with a public defender who didn’t have the time to investigate, he might have accepted a plea deal for years in prison. Instead, he walked away without a conviction.

Other Relevant Florida Statutes That May Apply

Several related statutes often come into play in burglary cases:

  • §810.011 – Definitions of dwelling, structure, and conveyance: Determines whether the offense falls under 1st, 2nd, or 3rd degree.

  • §775.082 – Penalties for felonies: Sets the statutory maximum penalties.

  • §810.07 – Prima facie evidence of intent: If someone enters at night without permission, the law may assume they intended to commit a crime unless otherwise proven.

  • §810.08 – Trespass vs. Burglary: If there was no intent to commit a crime inside, it might be reduced to trespass, a misdemeanor.

How We Fight to Get Charges Reduced or Dismissed

When I handle a burglary case, I don’t just accept the arrest report. I dissect it. I subpoena records. I file motions to exclude evidence. If there's an opportunity to get a charge reduced from second-degree to third-degree—or to a lesser offense like trespass—I take it.

In some cases, I’ve secured pre-trial diversion or withhold of adjudication, meaning no conviction and no prison. In others, I’ve gotten charges dismissed outright.

Florida Burglary FAQs

Is there a difference between burglary and trespass in Florida?
Yes, burglary requires intent to commit a crime once inside, while trespass is simply unlawful entry or remaining without that intent. Trespass is usually a misdemeanor, while burglary is always a felony. If the prosecution can’t prove you intended to commit another crime, we may argue for a reduction to trespass.

Can burglary charges be sealed or expunged?
It depends on how your case resolves. If the charges are dismissed or you receive a withhold of adjudication and meet certain eligibility rules, sealing or expungement may be possible. A conviction (adjudication of guilt) cannot be sealed or expunged in Florida.

What is considered a “dwelling” under Florida burglary law?
According to §810.011, a “dwelling” is a building or conveyance of any kind, including attached porches, which has a roof and is designed to be occupied by people at night. Burglary of a dwelling carries higher penalties than a structure or conveyance.

Can I get probation for a burglary charge?
Yes, but it depends on your prior record, the facts of the case, and whether any violence or weapons were involved. If we can show mitigating circumstances, we can often negotiate probation instead of incarceration.

What if I only opened a car door or garage without taking anything?
Burglary doesn’t require theft, only intent to commit a crime inside. However, if no items were taken and there’s weak evidence of intent, I may challenge the charge and seek a reduction or dismissal. This is especially important in first-time offender cases.

How do prosecutors prove intent in burglary cases?
They often rely on circumstantial evidence—time of entry, actions taken inside, possession of tools, or your statements. But these aren’t always reliable. As your defense attorney, I work to discredit that evidence, introduce reasonable doubt, and weaken the case.

What’s the difference between an occupied and unoccupied structure in burglary cases?
An occupied structure means someone is present or lives there, even if they’re not home at the time. Unoccupied means it’s vacant. Occupied burglary charges are treated more harshly and often come with increased sentencing guidelines.

Can I be charged with burglary if I never stepped foot inside?
Yes. Even reaching into a building or opening a door with intent to commit a crime may count. But intent is difficult to prove, and that’s where a defense attorney comes in. Without solid proof, the case may fall apart.

Florida Burglary Attorney - Call To Action

Burglary is a felony that can permanently impact your life, your career, and your freedom. But there are ways to fight back. A strong legal defense can mean the difference between a prison sentence and a second chance.

If you’ve been arrested or are under investigation for burglary anywhere in Florida, don’t wait. Call now.

Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation

Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 35 office locations throughout all of the state of Florida and serve all counties in Florida including Jacksonville, Miami, Tampa, Orlando, St. Petersburg, Hialeah, Port St. Lucie, Cape Coral, Tallahassee, Fort Lauderdale, and the Florida Panhandle.