Burglary of a Dwelling in Florida

In Florida, the crime of Burglary of a Dwelling is defined as unlawfully entering a dwelling, remaining inside a dwelling surreptitiously, or remaining inside a dwelling after permission to remain has been withdrawn with the intent to commit a crime inside. [1]

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

In Florida, the crime of Burglary of a Dwelling is classified as a Second Degree Felony punishable by up to fifteen (15) years in prison, fifteen (15) years of probation, and a $10,000 fine.

Burglary of a Dwelling is assigned a Level 7 offense severity ranking under Florida's Criminal Punishment Code and, absent grounds for a downward departure sentence, a judge is required to sentence a person convicted of Burglary of a Dwelling to a minimum sentence of 21 months in prison, but may also sentence the person up to the statutory maximum of fifteen years in prison.

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 of a Dwelling include:


Frequently, when two people (usually juveniles) are walking, one of the people will spontaneously decide to engage in illegal activity, such as entering an abandoned home or a closed business. If caught, law enforcement will often charge the second person who stood by and watched the first person commit the illegal activity as an accomplice, assuming the second person was acting as a lookout.

Under such circumstances, simply being present with the first person is insufficient to convict the second person with burglary or trespass unless the second person consciously did some act or said some word that incited, caused, assisted, or encouraged the first person to commit the illegal act. [2]


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 the consent to enter the dwelling beyond a reasonable doubt. [3]

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

Lack of Intent to Commit a Crime

One of the elements necessary to support a conviction for Burglary of a Dwelling is the intent to commit a crime inside. Usually this is proven by showing that a person entered the dwelling stealthily. [4]

However, if a person shows non-criminal reasons 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 of a Dwelling (although a conviction for Trespass may be proper).

Open to the Public

A subset of the consent defense, if a dwelling is "open to the public" a person by definition has consensually entered, 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" was withdrawn. So if you commit a crime inside (such as theft or robbery) you cannot also be convicted of Burglary of a Dwelling. [5]

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 dwelling and a Burglary of a Dwelling conviction will be upheld if such an area is entered. [6]

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, contact Criminal Defense Lawyer today.

The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.


  1. Florida Statute 810.02(3)
  2. L.J.S. v. State, 909 So. 2d 951 (Fla. 2d DCA 2005)
  3. D.R. v. State, 734 So. 2d 455 (Fla. 1st DCA 1999)
  4. K.H. v. State, 620 So. 2d 1114 (Fla. 5th DCA 1993)
  5. Miller v. State, 713 So. 2d 1008 (Fla. 1998)
  6. Drew v. State, 773 So. 2d 46, 52 (Fla. 2000)