Burglary is the most serious of Florida’s property charges, and the one most often overcharged. It is always a felony, the degrees climb fast, and the element the State most often cannot prove is the one people overlook: intent at the moment of entry.
The Three Degrees of Burglary
Section 810.02 grades burglary by what was entered, whether anyone was inside, and whether a weapon or violence was involved.
| Degree | When it applies | Maximum |
|---|---|---|
| Third-degree felony | Unoccupied structure or unoccupied conveyance, unarmed, with no assault or battery | 5 years |
| Second-degree felony | A dwelling whether or not anyone is home, an occupied structure or conveyance, or an authorized emergency vehicle | 15 years |
| First-degree felony | The offender makes an assault or battery, is or becomes armed with a weapon or explosive, or uses a vehicle as a tool to cause over $1,000 in damage | Up to life |
A dwelling is always at least a second-degree felony, occupied or not. Statutes and holdings last verified June 2026.
I began as an Assistant Public Defender in Florida’s Thirteenth Judicial Circuit, in Tampa, where property cases move in volume and the State counts on no one pushing back. Almost every one of these charges turns on two things the prosecutor has to prove, intent and value, and both are softer than they look. I know how the State builds a property case and where the proof tends to fall apart, on the value of what was taken or damaged, on whether the intent was ever really there, and on the search that produced the evidence. Learn more about my background.
The Element the State Forgets: Intent at Entry
Burglary is not just unlawful entry. It is entering or unlawfully remaining in a dwelling, structure, or conveyance with the intent to commit an offense inside, and that intent has to exist at the moment of the unlawful entry or remaining. If the intent to commit a crime formed only after a lawful entry, or the State cannot prove any such intent, the offense is a trespass, not a burglary. There is no requirement of breaking in: an open door is enough if the entry was unauthorized and the intent was there.
Armed Burglary and Burglary With a Battery
The charge becomes a first-degree felony, punishable by up to life, when the offender makes an assault or battery during the burglary, or is or becomes armed with a dangerous weapon or explosive at any point inside. A person who arms himself only after entering still faces armed burglary, and taking a firearm during the burglary can be enough on its own. These are the cases where the exposure is most out of proportion to the conduct, which is exactly why the proof has to be tested hard.
How I Defend a Burglary Charge
I focus on the intent the State has to prove and the route the evidence took: whether intent existed at entry or was assumed after the fact, whether entry was consented to or the place was open, whether the identification is sound, and whether the stop or search that produced the evidence was lawful. Where intent fails, a felony burglary can become a misdemeanor trespass, and where the search was unlawful, the case can end.
Common Questions
Is burglary always a felony in Florida?
Yes. There is no misdemeanor burglary. The lowest level is third-degree felony burglary of an unoccupied structure or vehicle, which carries up to five years. Burglary of a dwelling or an occupied structure or vehicle is a second-degree felony with up to fifteen years, and armed burglary or burglary with a battery is a first-degree felony punishable by up to life.
Do I have to break in to commit burglary?
No. Burglary does not require any breaking or forced entry. Walking through an open door can be burglary if you were not authorized and you intended to commit an offense inside. The statute also covers remaining in a place after your permission ends, as long as you stayed surreptitiously with intent to commit an offense.
What does the State have to prove besides entry?
Intent. The State must prove that at the moment you entered or unlawfully remained, you intended to commit a separate offense inside, not that you formed that idea later. If the intent to commit a crime came only after entry, or cannot be shown at all, the charge should be a trespass rather than a burglary, which is usually a misdemeanor.
Why is my burglary charged as armed or first-degree?
A burglary becomes a first-degree felony, punishable by up to life, if during the offense you commit an assault or battery, or you are or become armed with a weapon or explosive, even one picked up inside. Taking a firearm during the burglary can make it armed burglary on its own. These are the cases where the exposure jumps dramatically and the defense matters most.
Can a burglary be reduced to trespass?
Often, yes. Because the dividing line is intent at the time of entry, a burglary where the State cannot prove that intent should fall to a trespass. Consent to enter, a place open to the public, mistaken identity, and a lack of any proof of intent are all paths to a reduction or a dismissal, and an unlawful search can remove the evidence entirely.
Related: Property crimes overview, Trespass, Possession of burglary tools, Robbery and carjacking, and Search and seizure.
This page is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. Property offenses are governed mainly by chapters 810, 806, and 817, Florida Statutes, and the degrees and value thresholds change, so they should be confirmed against current law. Every case turns on its own facts, and past results do not guarantee a similar outcome.
