Can Someone Be Charged With Aggravated Burglary Without Actually Stealing Anything?

Understanding Florida Burglary Law, Penalties, and Defenses

When people think of burglary, they usually picture someone breaking into a house and stealing valuables. What surprises many is that under Florida law, you can face a burglary charge, including aggravated burglary, without ever taking a single item. As a criminal defense lawyer who has defended clients across Florida for decades, I want to explain how the law works, what the statutes say, and why hiring the right defense attorney can make all the difference when your freedom and future are on the line.

Florida’s Burglary Statute

Burglary in Florida is defined under Florida Statutes Section 810.02. The statute states:

“Burglary means 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 is key: the offense occurs at the moment of entry with intent, not at the moment of stealing. That means prosecutors can file burglary charges even if nothing is stolen or damaged. The “intent to commit an offense” is what matters most. That offense could be theft, assault, battery, criminal mischief, or another felony.

Under 810.02(2), burglary becomes a first-degree felony if the offender:

• Makes an assault or battery,

• Is armed or becomes armed within the dwelling or structure, or

• Causes damage over $1,000 or uses a motor vehicle to assist the crime.

This is what people commonly think of as “aggravated burglary,” though the statute itself classifies it as first-degree burglary.

Can You Be Charged Without Stealing Anything?

Yes. Prosecutors do not have to prove that you took property. They only need to show you entered with the intent to commit an offense inside. That intent can be inferred from circumstances such as being found inside a home at night, wearing a mask or gloves, or possessing burglary tools.

This makes the law extremely broad and often unfairly applied. I have seen clients face aggravated burglary charges when they had no stolen goods and no actual crime committed beyond being in the wrong place at the wrong time.

This is where I, as your defense lawyer, step in. My job is to challenge the state’s evidence of intent. Without clear proof of criminal intent, the charge cannot stand.

Why Intent Matters

Florida courts have consistently ruled that burglary requires proof of intent. Simply entering a building unlawfully is not enough unless the state proves beyond a reasonable doubt that you intended to commit another crime once inside.

For example, in State v. Waters, 436 So.2d 66 (Fla. 1983), the Florida Supreme Court emphasized that “entry with the intent to commit an offense” is a required element.

This is why hiring a private attorney is critical. Public defenders are often overloaded and may not have the time to pick apart the prosecutor’s case on intent. I dig deep into every fact—how you entered, what you had on you, what you did inside—and expose where the state is guessing rather than proving.

Real Case Example From My Practice

One client was accused of aggravated burglary for allegedly breaking into a neighbor’s garage. Police claimed he intended to steal tools because he was found inside at night. Importantly, nothing was missing, no tools were disturbed, and he had no burglary tools on him.

Through investigation, I discovered he had been drinking and mistakenly thought he was entering his cousin’s garage nearby. I presented evidence of his lack of criminal intent, including witness testimony from neighbors who saw him earlier that evening visibly intoxicated and disoriented.

The jury rejected the state’s theory of intent to steal. Instead of facing a first-degree felony with a possible life sentence, the charges were dismissed. That outcome saved his future, and it only happened because we aggressively challenged the prosecution’s assumptions.

Potential Penalties for Aggravated Burglary in Florida

Burglary penalties depend on the circumstances:

• First-Degree Felony (810.02(2)): Punishable by up to life in prison if there is an assault, battery, or weapon involved.

• Second-Degree Felony (810.02(3)): Up to 15 years in prison if the burglary involves a dwelling, or if another person is inside the structure or conveyance.

• Third-Degree Felony (810.02(4)): Up to 5 years in prison for burglary of an unoccupied structure or conveyance without aggravating factors.

Even without theft, the penalties are severe. Prosecutors often push for the harshest version of the charge. Having a private attorney means having someone to fight to reduce the charge to trespass, criminal mischief, or even dismissal.

Common Defenses to Aggravated Burglary Charges

Several defenses may apply depending on the facts:

• Lack of Intent: You entered without the intent to commit an offense. For example, entering by mistake or for shelter.

• Consent or Invitation: If you were invited or had license to enter, it is not burglary.

• No Entry: The state must prove you actually entered or attempted entry.

• Insufficient Evidence: If the prosecution relies only on assumptions without solid proof, the charge can be dismissed.

• Mistaken Identity: Eyewitness testimony is often unreliable, and I have cleared clients based on faulty identification.

Every case is different, and I craft defenses tailored to the facts. This is why you need a private attorney: without a focused defense strategy, you risk prison time for something that may not even qualify as burglary under the law.

Other Relevant Florida Statutes

• Trespass (Fla. Stat. 810.08 & 810.09): If the state cannot prove intent to commit a crime inside, the charge should be reduced to trespass, a less serious offense.

• Possession of Burglary Tools (Fla. Stat. 810.06): Prosecutors sometimes stack this charge, but it requires proof you had tools with intent to commit burglary.

• Assault and Battery (Fla. Stat. 784.011 & 784.03): If alleged during a burglary, the offense escalates dramatically.

By comparing statutes and highlighting overcharging, I have been able to negotiate reductions that spare my clients years of incarceration.

Why You Need a Private Attorney

The difference between a public defender and a private defense lawyer in aggravated burglary cases often comes down to time and resources. These cases require investigating police reports, interviewing witnesses, examining surveillance footage, and filing motions to suppress illegally obtained evidence.

I do not assume the prosecutor’s version of events is correct. I build a counter-narrative supported by facts. That proactive approach is what gets cases reduced or dismissed. If you are facing a charge where your intent is being guessed rather than proven, you need a lawyer who will fight for you as if your life depends on it—because it does.

Frequently Asked Questions About Florida Burglary Charges

Can burglary charges stick if nothing was stolen?
Yes. Florida law only requires proof that you entered with intent to commit a crime inside. Theft is not necessary. That is why prosecutors often file burglary charges even when no property was taken.

What is the difference between burglary and trespass?
Trespass occurs when you enter or remain on property without permission but without intent to commit a further offense. Burglary requires proof of that intent. A strong defense attorney can sometimes get burglary reduced to trespass when intent cannot be proven.

What makes a burglary charge aggravated?
Burglary becomes aggravated, or first-degree, when there is an assault, battery, or a weapon involved, or if serious property damage occurs. These factors raise the potential penalty to life imprisonment.

Can intoxication be a defense to burglary?
Yes, in some cases. If intoxication prevented you from forming the intent to commit a crime inside, your lawyer can argue that burglary cannot be proven beyond a reasonable doubt. However, this defense is fact-specific and requires careful presentation.

Is simply opening a door or window considered entry under the statute?
Yes. Florida law treats even minimal entry, such as reaching a hand inside a window, as “entry” for burglary purposes. The state does not need proof of fully stepping inside.

Can burglary charges be dropped if the homeowner does not want to press charges?
Not necessarily. Burglary is prosecuted by the state of Florida, not the property owner. Even if the owner is not cooperative, the state can continue with the case if they believe they have enough evidence.

What if I had permission to be in the house earlier?
If you had permission or license to be in the dwelling, that may be a complete defense. Prosecutors must prove that you entered without invitation or that your license was revoked. Consent is a strong defense when supported by evidence.

Does the state need physical evidence like fingerprints?
No. Prosecutors can rely on circumstantial evidence such as eyewitnesses or your presence at the scene. That said, lack of physical evidence is a powerful argument for reasonable doubt.

Can a juvenile be charged with burglary in Florida?
Yes. Juveniles can face burglary charges, and in serious cases, prosecutors may even seek to transfer the case to adult court. Having an attorney early on is crucial to protect the child’s future.

What are possible plea deals in burglary cases?
Depending on the facts, an attorney may negotiate a reduction to trespass, criminal mischief, or even probationary terms. The strength of the defense directly impacts the leverage for a favorable plea.

What if I never went inside but only attempted to?
Attempted burglary is still a crime, though it may carry lesser penalties. The state must prove you intended to commit the offense and took a substantial step toward entry.

Is it possible to get probation instead of prison?
In some cases, yes. Especially with first-time offenders or weak evidence, probation can be negotiated. Each case depends on the charges, the facts, and your criminal history.

Can prior convictions affect a burglary case?
Yes. Prior burglary or theft convictions can lead prosecutors to file harsher charges and judges to impose stiffer sentences. A skilled attorney can work to limit the impact of prior history.

What should I do immediately if I am arrested for burglary?
Remain silent and request a lawyer. Do not try to explain your side to the police, as anything you say will be used against you. Contact a defense attorney right away to protect your rights.

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If you are facing aggravated burglary charges in Florida, do not wait. The law allows prosecutors to charge you even if nothing was stolen, and the penalties are life-altering. I have successfully defended clients against these charges, and I can put that same experience to work for you.

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 over 30 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.