Burglary of a dwelling, structure or conveyance lawyer
What is the definition of burglary under Florida law?
In Florida, a burglary is entering a dwelling, a structure, or a conveyance with the intent to commit a offense inside. A typical offense inside the dwelling, structure or conveyance is grand theft. The intended offense cannot be trespass or burglary. A typical case is where a person enters a house (dwelling), car or boat (conveyance), with the intent to steal something inside.
What defenses are there to burglary in Florida?
-It wasn't me. (The Shaggy defense)
-I never entered a dwelling, structure or conveyance.
-I had no intent to commit a crime in the dwelling, structure or conveyance. Note the intent to commit a crime does not include trespass or burglary.
-The dwelling, structure or conveyance was open to the public at the time the alleged burglary occurred.
-I was licensed or invited to enter.
What is NOT a defense to a Florida burglary charge?
Even if you were licensed or invited on the property, if you remained there surreptitiously (stealthily), with the intent to commit an offense there, that is not a defense to a burglary charge.
Let's say you were told to leave by the owner of the dwelling, structure or conveyance. In other words, your permission to be in the dwelling, structure or conveyance was withdrawn. You can't remain there with the intent to commit a criminal offense. You have to leave.
Went to an area not open to the public
If you entered premises that were open to the public, but then entered an area of the premises that you knew or should have known was not open to the public, that is not a defense to burglary if you entered that non-public area with the intent to commit a crime – other than trespass or burglary - in that non-public area.
Even if invited on the property, if you committed or attempted to commit a forcible felony as defined under Florida law, that is not a defense. If the license or invitation to enter was obtained by defendant’s trick or fraud or deceit, then the license or invitation to enter was not valid.
How does the state of Florida try to prove intent in a burglary case?
Witness if they have any. Sometimes, by circumstantial evidence. It's hard to get inside someone's mind. There may be video. They also try to prove intent by showing you had recently stolen property. If you have recently stolen property, unless it is satisfactorily explained to the jury, that may be a basis for the jury to find you guilty.
What is the difference between a dwelling, structure and a conveyance?
Generally, a dwelling is a house, a structure is a building other than a house and a conveyance is a motor vehicle or boat. However, the Florida Supreme Court definitions are:
“Structure” means any building of any kind, either temporary or permanent, that has a roof over it, and the enclosed space of ground and outbuildings immediately surrounding that structure.
“Conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft or sleeping car; and to enter a conveyance includes taking apart any portion of the conveyance.
“Dwelling” means a building or conveyance of any kind, 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 enclosed space of ground and outbuildings immediately surrounding it. For purposes of burglary, a “dwelling” includes an attached porch or attached garage.
First degree burglary
Burglary is broken up into different degrees, depending on the facts involved in each case. The most serious is first degree burglary, which is punishable by a prison term not exceeding life imprisonment.
Examples of a first degree burglary
-Burglary with an assault on any person
With an assault, there is no touching. The media many times says “he was assaulted” when they mean battered. An assault is an intentional and unlawful threat, either by word or act, to do violence to another person, at a time when you appeared to have the ability to carry out the threat and your act created a well-founded fear in the other person that the violence was about to take place.
-Burglary with a battery on any person
If during the course of the burglary, you committed a battery, that is a first degree felony. A battery is an actual and intentional touching or striking of another person against that person’s will.
-Burglary while armed within the dwelling, structure, or conveyance
If during the course of the burglary you picked up (possessed) a gun (called firearm under Florida law), that is a burglary while armed. It doesn't matter if the gun had any bullets in it or not. At any time during the course of the burglary you picked up a gun– regardless of whether it is a dwelling, structure or conveyance – that is burglary while armed.
-Burglary with a motor vehicle (burglary assisted my motor vehicle)
If you used a car or truck to help with the burglary of a dwelling or structure – other than just as a getaway vehicle – and the dwelling or structure is damaged, that is a first degree felony.
-Over $1,000 damage to dwelling or structure
If there is over one thousand bucks damage to the dwelling, structure or property inside, that is a first degree felony.
-Burglary during a state of emergency
Remember when hurricane Frances hit south Florida in 2004? There was a state of emergency in Palm Beach county. There was a curfew too. If the burglary is committed in a county that is subject to a state of emergency declared by the Governor after the declaration of emergency is made and the perpetration of the burglary is facilitated by conditions arising from the emergency, the burglary goes from a second degree felony to a first degree felony or for simple burglary of a structure or conveyance (see below) a third degree felony to a second degree felony.
What are conditions arising from the emergency for felony burglary?
Power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel.
Second degree burglary
Second degree burglary in Florida is punishable by up to 15 years prison. Examples of second degree burglary include:
A simple burglary where no assault or battery takes place, no guns, dangerous weapons or explosives are involved and a:
-Burglary of a dwelling occupied (A burglary of a house where someone is inside)
-Burglary of dwelling unoccupied (Burglary of an empty house)
-Burglary of a structure with another person in the structure
-Burglary of a conveyance with another person in the conveyance
-Burglary of an authorized emergency vehicle
This includes a fire truck, cop car, ambulances, and generally some city, county, state and federal vehicles.
-Burglary of a structure or conveyance when your intent is to steal drugs (called controlled substances under Florida law).
Third degree burglary of a structure or conveyance
Burglary of a structure (unoccupied) and burglary of a conveyance (unoccupied) are both third degree felonies, both punishable by up to five years prison in Florida. In addition to the requirement of nobody being there in the motor vehicle or structure, there cannot be an assault or battery, and the defendant cannot become armed with a gun or dangerous weapon or explosive.
If you or a loved one needs help with a burglary of a dwelling, structure or conveyance charge, call me, Grey Tesh, board certified criminal trial lawyer, at 561-686-6886. I'm based out of West Palm Beach, Florida, but travel all over to help people.
“Law is not black or white, it's Grey”