Burglary of a Dwelling - Law Firm Arnold Law Firm, LLC Attorneys Jacksonville, Florida

Burglary of a Dwelling / Conveyance / Structure

Burglary occurs when an individual enters a dwelling, structure, or conveyance (car) with the intent to commit an offense therein. These commonly charged offenses range from the random rummaging through a car for loose change, to the entry of a home for robbery purposes. The location of the burglary and the events that happened during the offense can lead to drastic changes in the felony exposure. For instance, entering a home that is occupied and assaulting anyone inside, or becoming armed once inside the home can expose a defendant to a possibility of life in prison. Breaking into an unoccupied car on the other hand is only a third degree felony, subjecting the defendant to a possible sentence of five years in prison. Regardless of the degree of felony faced, these charges are extremely difficult to handle and should not be handled by attorneys with little or no experience in criminal law. Many of those arrested find themselves in a trial setting and must be accompanied by a seasoned trial attorney with the experience and know-how to properly defend the accused.

Often these charges, with the help of an experienced criminal defense lawyer, can be reduced or broken down to a charge of trespass if not outright beaten or dropped by the State. Many times an individual is arrested for committing a burglary if they are found in possession of stolen property. But, if there is little or no evidence to suggest that the defendant intended to commit a crime once inside the structure, dwelling, or conveyance the charges won't stick.

Prosecutors will often attempt to appeal to the "common sense of the jury" and suggest that there would be no other purpose to entering these places, if not to commit a crime. The problem with that argument is that "common sense" is not a substitute for evidence. Prosecutors must be able to present objective evidence that demonstrates the defendant's desire to commit a crime once inside the location. Our attorneys have vast trial experience and know how to defend against such arguments before and during the trial.

If you need a Florida criminal defense lawyer to defend criminal burglary charges, contact the Jacksonville office of Arnold Law Firm, LLC to discuss your Florida criminal charges. Below are Florida's Burglary statutes most often charged in Jacksonville and the surrounding northeast Florida counties.

Florida Burglary Statutes

810.011 Definitions (of Burglary)

(1) "Structure" means a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof. However, during the time of a state of emergency declared by executive order or proclamation of the Governor under chapter 252 and within the area covered by such executive order or proclamation and for purposes of ss. 810.02 and 810.08 only, the term means a building of any kind or such portions or remnants thereof as exist at the original site, regardless of absence of a wall or roof.

(2) "Dwelling" means a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof. However, during the time of a state of emergency declared by executive order or proclamation of the Governor under chapter 252 and within the area covered by such executive order or proclamation and for purposes of ss. 810.02 and 810.08 only, the term includes such portions or remnants thereof as exist at the original site, regardless of absence of a wall or roof.

(3) "Conveyance" means any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car; and "to enter a conveyance" includes taking apart any portion of the conveyance. However, during the time of a state of emergency declared by executive order or proclamation of the Governor under chapter 252 and within the area covered by such executive order or proclamation and for purposes of ss. 810.02 and 810.08 only, the term "conveyance" means a motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car or such portions thereof as exist.

(4) An act is committed "in the course of committing" if it occurs in an attempt to commit the offense or in flight after the attempt or commission.

(5)(a) "Posted land" is that land upon which:

1. Signs are placed not more than 500 feet apart along, and at each corner of, the boundaries of the land, upon which signs there appears prominently, in letters of not less than 2 inches in height, the words "no trespassing" and in addition thereto the name of the owner, lessee, or occupant of said land. Said signs shall be placed along the boundary line of posted land in a manner and in such position as to be clearly noticeable from outside the boundary line; or

2.a. Conspicuous no trespassing notice is painted on trees or posts on the property, provided that the notice is:

(I) Painted in an international orange color and displaying the stenciled words "No Trespassing" in letters no less than 2 inches high and 1 inch wide either vertically or horizontally;

(II) Placed so that the bottom of the painted notice is not less than 3 feet from the ground or more than 5 feet from the ground; and

(III) Placed at locations that are readily visible to any person approaching the property and no more than 500 feet apart on agricultural land.

b. Beginning October 1, 2007, when a landowner uses the painted no trespassing posting to identify a "no trespassing" area, those painted notices shall be accompanied by signs complying with subparagraph 1. and placed conspicuously at all places where entry to the property is normally expected or known to occur.

(b) It shall not be necessary to give notice by posting on any enclosed land or place not exceeding 5 acres in area on which there is a dwelling house in order to obtain the benefits of ss. 810.09 and 810.12 pertaining to trespass on enclosed lands.

(6) "Cultivated land" is that land which has been cleared of its natural vegetation and is presently planted with a crop, orchard, grove, pasture, or trees or is fallow land as part of a crop rotation.

(7) "Fenced land" is that land which has been enclosed by a fence of substantial construction, whether with rails, logs, post and railing, iron, steel, barbed wire, other wire, or other material, which stands at least 3 feet in height. For the purpose of this chapter, it shall not be necessary to fence any boundary or part of a boundary of any land which is formed by water.

(8) Where lands are posted, cultivated, or fenced as described herein, then said lands, for the purpose of this chapter, shall be considered as enclosed and posted.

(9) "Litter" means any garbage, rubbish, trash, refuse, debris, can, bottle, box, container, paper, tobacco product, tire, domestic or commercial appliance, mechanical equipment or part, building or construction material, tool, machinery, wood, motor vehicle or motor vehicle part, vessel, aircraft, or farm machinery or equipment; sludge from a waste treatment facility, water supply treatment plant, or air pollution control facility; or substance in any form resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations.

(10) "Dump" means to dump, throw, discard, place, deposit, or dispose of any litter.

(11) "Commercial horticulture property" means any property that is cleared of its natural vegetation and is planted in commercially cultivated horticulture products that are planted, grown, or harvested. The term also includes property that is used for the commercial sale, use, or distribution of horticulture products.

(12) "Agricultural chemicals manufacturing facility" means any facility, and any properties or structures associated with the facility, used for the manufacture, processing, or storage of agricultural chemicals classified in Industry Group 287 contained in the Standard Industrial Classification Manual, 1987, as published by the Office of Management and Budget, Executive Office of the President.

(13) "Construction site" means any property upon which there is construction that is subject to building permit posting requirements.

History.--s. 30, ch. 74-383; s. 1, ch. 76-46; s. 1, ch. 82-87; s. 1, ch. 92-351; s. 1, ch. 94-263; s. 1, ch. 94-307; s. 47, ch. 96-388; s. 13, ch. 99-188; s. 3, ch. 2001-182; s. 49, ch. 2001-279; s. 15, ch. 2006-289; s. 1, ch. 2007-123; s. 4, ch. 2007-244.

810.015 Legislative findings and intent; burglary.

(1) The Legislature finds that the case of Delgado v. State, 776 So. 2d 233 (Fla. 2000), was decided contrary to legislative intent and the case law of this state relating to burglary prior to Delgado v. State. The Legislature finds that in order for a burglary to occur, it is not necessary for the licensed or invited person to remain in the dwelling, structure, or conveyance surreptitiously.

(2) It is the intent of the Legislature that the holding in Delgado v. State, 776 So. 2d 233 (Fla. 2000) be nullified. It is further the intent of the Legislature that s. 810.02(1)(a) be construed in conformity with Raleigh v. State, 705 So. 2d 1324 (Fla. 1997); Jimenez v. State, 703 So. 2d 437 (Fla. 1997); Robertson v. State, 699 So. 2d 1343 (Fla. 1997); Routly v. State, 440 So. 2d 1257 (Fla. 1983); and Ray v. State, 522 So. 2d 963 (Fla. 3rd DCA, 1988). This subsection shall operate retroactively to February 1, 2000.

(3) It is further the intent of the Legislature that consent remain an affirmative defense to burglary and that the lack of consent may be proven by circumstantial evidence.

(4) The Legislature finds that the cases of Floyd v. State, 850 So. 2d 383 (Fla. 2002); Fitzpatrick v. State, 859 So. 2d 486 (Fla. 2003); and State v. Ruiz/State v. Braggs, Slip Opinion Nos. SC02-389/SC02-524 were decided contrary to the Legislative intent expressed in this section. The Legislature finds that these cases were decided in such a manner as to give subsection (1) no effect. The February 1, 2000, date reflected in subsection (2) does not refer to an arbitrary date relating to the date offenses were committed, but to a date before which the law relating to burglary was untainted by Delgado v. State, 776 So. 2d 233 (Fla. 2000).

(5) The Legislature provides the following special rules of construction to apply to this section:

(a) All subsections in this section shall be construed to give effect to subsection (1);

(b) Notwithstanding s. 775.021(1), this section shall be construed to give the interpretation of the burglary statute announced in Delgado v. State, 776 So. 2d 233 (Fla. 2000), and its progeny, no effect; and

(c) If language in this section is susceptible to differing constructions, it shall be construed in such manner as to approximate the law relating to burglary as if Delgado v. State, 776 So. 2d 233 (Fla. 2000) was never issued.

(6) This section shall apply retroactively.

History.--s. 1, ch. 2001-58; s. 1, ch. 2004-93.

810.02 Burglary.

(1)(a) For offenses committed on or before July 1, 2001, "burglary" means entering or remaining in 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 or remain.

(b) For offenses committed after July 1, 2001, "burglary" means:

1. 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; or

2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:

a. Surreptitiously, with the intent to commit an offense therein;

b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or

c. To commit or attempt to commit a forcible felony, as defined in s. 776.08.

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:

(a) Makes an assault or battery upon any person; or

(b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon; or

1. Uses 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

2. Causes damage to the dwelling or structure, or to property within the dwelling or structure in excess of $1,000.

(3) Burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:

(a) Dwelling, and there is another person in the dwelling at the time the offender enters or remains;

(b) Dwelling, and there is not another person in the dwelling at the time the offender enters or remains;

(d) Conveyance, and there is another person in the conveyance at the time the offender enters or remains; or

(e) Authorized emergency vehicle, as defined in s. 316.003.

However, if the burglary is committed within a county that is subject to a state of emergency declared by the Governor under chapter 252 after the declaration of emergency is made and the perpetration of the burglary is facilitated by conditions arising from the emergency, the burglary is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this subsection, the term "conditions arising from the emergency" means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel. A person arrested for committing a burglary within a county that is subject to such a state of emergency may not be released until the person appears before a committing magistrate at a first appearance hearing. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed.

(4) Burglary is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:

(a) Structure, and there is not another person in the structure at the time the offender enters or remains; or

(b) Conveyance, and there is not another person in the conveyance at the time the offender enters or remains.

However, if the burglary is committed within a county that is subject to a state of emergency declared by the Governor under chapter 252 after the declaration of emergency is made and the perpetration of the burglary is facilitated by conditions arising from the emergency, the burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this subsection, the term "conditions arising from the emergency" means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel. A person arrested for committing a burglary within a county that is subject to such a state of emergency may not be released until the person appears before a committing magistrate at a first appearance hearing. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed.

History.--RS 2434; s. 2, ch. 4405, 1895; s. 2, ch. 5411, 1905; GS 3282; RGS 5116; CGL 7217; s. 799, ch. 71-136; s. 31, ch. 74-383; s. 21, ch. 75-298; s. 2, ch. 82-87; s. 1, ch. 83-63; s. 8, ch. 95-184; s. 2, ch. 96-260; s. 2, ch. 2000-233; s. 2, ch. 2001-58; s. 2, ch. 2003-84; s. 1, ch. 2007-115.

810.061 Impairing or impeding telephone or power to a dwelling; facilitating or furthering a burglary; penalty.

(1) As used in this section, the term "burglary" has the meaning ascribed in s. 810.02(1)(b).

(2) A person who, for the purpose of facilitating or furthering the commission or attempted commission of a burglary of a dwelling by any person, damages a wire or line that transmits or conveys telephone or power to that dwelling, impairs any other equipment necessary for telephone or power transmission or conveyance, or otherwise impairs or impedes such telephone or power transmission or conveyance commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.--s. 1, ch. 2003-84.

810.07 Prima facie evidence of intent.

(1) In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof is prima facie evidence of entering with intent to commit an offense.

(2) In a trial on the charge of attempted burglary, proof of the attempt to enter such structure or conveyance at any time stealthily and without the consent of the owner or occupant thereof is prima facie evidence of attempting to enter with intent to commit an offense.

History.--s. 5, ch. 4405, 1895; GS 3287; RGS 5121; CGL 7222; s. 1, ch. 70-29; s. 33, ch. 74-383; s. 44, ch. 87-243.

Updated as of September 1, 2009 from http://www.flsenate.gov/