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:
- Unlawfully entering a dwelling with the intent to commit a crime inside; or
- Lawfully entering a dwelling, but then remaining inside either:
- Surreptitiously, with the intent to commit a crime;
- After permission to remain has been withdrawn, with the intent to commit a crime inside; or
- 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 in Florida is classified as a Second Degree Felony and is assigned a Level 7 offense severity ranking 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 defenses 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. [1]
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the right to "remain inside" is implied unless the State has proof that the implied consent to "remain inside" has been withdrawn.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. [2]
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. [3]
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. [4]
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).
Contact Criminal Defense Lawyer Richard Hornsby
If you have been arrested or charged with the crime of Burglary of a Dwelling in Central Florida or the greater Orlando area, please contact Criminal Defense Lawyer Richard Hornsby today.
The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.