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Florida Statute 810.02, Burglary

Definition and Elements of the Crime

Under Florida law burglary is generally defined as entering or remaining in a building or structure with the intent to commit a crime while inside. While the term breaking and entering is sometimes used interchangeably with burglary, modern law does not require an actual breaking to prove a burglary. The degree of burglary charges that can be filed depend on the type of building or structure and the type of criminal act that was performed while inside. All three degrees of burglary are classified as felonies under Florida law, and unlike many other states there is no such thing as misdemeanor burglary. First-degree burglary is the most serious burglary offense and can be charged based on three scenarios. The first , and most common, is burglary with battery (commonly known as burg batt), which is committing an assault or battery while inside the building or structure. The next most common type of first-degree offense is armed burglary, which can occur if the defendant enters the building or structure with a dangerous weapon, or becomes armed after entering. Dangerous weapon can include a firearm, knife or explosive. The least common type of first-degree burglary is using a motor vehicle to enter a building or structure and causing damage in the process. Using a getaway vehicle does not qualify under this particular section. Second-degree burglary (also known as burg dwelling) is typically charged if a defendant enters the home of another with the intent to commit a crime, regardless whether anyone is in the home. A defendant may also be charged with second-degree burglary for entering an occupied vehicle or structure or an emergency vehicle. All other types of burglary are classified as third-degree.


Entering a person’s home to commit a theft, regardless of whether the defendant had to pick a lock or break a window, is considered a second-degree burglary of a dwelling. If the dwelling was occupied the offense will remain a second-degree burglary but the defendant may face enhanced penalties. Breaking into a home or store, or even remaining without permission, and stealing a firearm or other weapon can be charged as armed burglary regardless of whether the defendant initially intended to steal a weapon. If a person enters a home or other structure with a weapon or firearm but never brandishes it, he or she may still be charged with first degree armed burglary.

Related Offenses

Entering a building or other structure without permission and without any evidence of intent to commit a crime will generally be charged as trespass under 810.08. Trespassing is a second-degree misdemeanor if it involves a structure or conveyance (car, boat or other vehicle). Trespassing in a person’s home or on their curtilage or other property is a first-degree misdemeanor under 810.09, unless the person is armed. Florida is one of a handful of states that actually maintains felony trespass laws for those that are armed with a dangerous weapon or those who trespass on designated construction sites.


The most common defense to burglary cases is identity, as defendants are frequently charged after the fact and not caught on scene by law enforcement. Police often attempt to identify suspects using fingerprints, DNA and surveillance footage, but there are various flaws in these tactics. Other defenses include permission to be on the premises, which often can be the difference between misdemeanor battery charges and life-felony burglary with battery charges.


The maximum penalty for burglary with battery and armed burglary is life in prison under Florida law. In many instances this harsh penalty is completely out of line with reasonable maximum penalties for similar offenses, which makes hiring the right lawyer extremely important. Burglary of a dwelling carries the same 15-year maximum as other second-degree felonies, and third-degree burglary comes with a five-year maximum penalty.

Florida Burglary Lawyer

Benjamin Herbst is a South Florida criminal defense lawyer who specializes in burglary charges. He has successfully represented numerous clients for first, second and third-degree burglary and has won numerous burglary jury trials. Benjamin is standing by to fight your burglary charge in all South Florida jurisdictions including Miami-Dade, Broward and Palm Beach Counties. Call South Florida burglary lawyer Benjamin Herbst anytime for a free consultation at (954) 543-0305 and find out what defenses may be available in your case.

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