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Burglary of a Dwelling in Florida

If accused of Burglary of a Dwelling in Florida, you need to know the:

• Definition of Burglary of a Dwelling
• Penalties for Burglary of a Dwelling
• Defenses to Burglary of a Dwelling

Definition of Burglary of a Dwelling

The crime of Burglary of a Dwelling can be committed in one of two ways:

1. Unlawfully entering a dwelling with the intent to commit a crime inside; or
2. Lawfully entering a dwelling, but then remaining inside either:
   1. Surreptitiously, with the intent to commit a crime;
   2. After permission to remain has been withdrawn, with the intent to commit a crime inside; or
   3. With the intent to commit a forcible felony.

A dwelling is defined as a building or conveyance of any kind, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the surrounding curtilage.

Penalties for Burglary of a Dwelling

The crime of Burglary of a Dwelling is a Second Degree Felony and is classified as a Level 7 offense under Florida's Criminal Punishment Code.

If convicted of Burglary of a Dwelling, a judge is required to impose a minimum prison sentence of 21 months in prison and can also impose any combination of the following penalties:

• Up to fifteen (15) years in prison.
• Up to fifteen (15) years of probation.
• Up to $10,000 in fines.

Defenses to Burglary of a Dwelling

In addition to the pretrial and trial defenses that can be raised in any criminal case, specific defenses to the crime of Burglary include:

Consent

Consent to enter is not an element of Burglary of a Dwelling, but is an affirmative defense to the crime. A defendant has the burden to offer evidence of consent. But once evidence of consent is presented, the prosecutor must disprove that consent was given beyond a reasonable doubt.

Consent is usually raised when there are multiple people who live in a house, one of whom gave you consent to enter. Under such circumstances, a defendant cannot be convicted of burglary just because the other people were unaware of the authorization to enter.

Open to the Public

Also based on defense of consent, if an establishment is "open to the public" a person by definition has consensually entered a business open to the public, no matter what the subjective intentions for entering are. As a result, the right to "remain inside" is implied unless the State has proof that the implied consent to "remain inside" has been withdrawn. So if you commit a crime inside (such as theft or robbery) you cannot also be convicted of Burglary.

Off Limits or Employee Only Area

The "Open to the Public" defense does not apply to an off limits or employee only area of a business and a burglary conviction will be upheld if such an area is entered.

Lack of Intent to Commit a Crime

One of the elements necessary to support a conviction for Burglary is intent to commit a crime inside the dwelling. Usually the intent to commit a crime is proven by showing that a person entered a dwelling stealthily.

However, if a person shows a non-criminal reason for entering the dwelling, such as to get out of the rain or to find a place to sleep, a person cannot be convicted of burglary (although a trespass conviction may be proper).

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The material on this page represents general legal advice. Since the law is continually changing, some of the provisions contained here may be out of date. It is always best to consult a criminal defense attorney about your legal rights and responsibilities regarding your particular case.

The hiring of a Florida criminal lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of a criminal defense lawyer / client relationship.

Contact Criminal Defense Lawyer Charley Demosthenous

If you have been arrested or charged with a crime, please contact Tampa Criminal Defense Attorney Charley Demosthenous today. The sooner you contact me, the sooner I can establish a defense on your behalf.

The initial consultation is free of charge and I will inform you of possible defense strategies and/or remedies. I am available 24 hours a day, 7 days a week. (813) 857-8237

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William S. Foley, P.A.
Divorce and Family Law

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