Burglary Defense in Miami

That's why burglary cases so often turn on one question: can the State prove what was in your head when you went in? Dennis Gonzalez Jr. is a former Miami-Dade prosecutor who has been defending people since 2012. Our office answers 24 hours a day.

For the difference between burglary and theft in brief, see Theft Defense.

What Florida Law Calls Burglary

Florida's burglary statute, s. 810.02, has two main versions for offenses committed after July 1, 2001.

1. Entering with intent. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense inside, unless the place was open to the public at the time or you were licensed or invited to enter.

2. Remaining inside. Even if you were allowed in, it can be burglary to remain in a dwelling, structure, or conveyance:

• secretly ("surreptitiously"), with the intent to commit an offense inside;
• after permission to stay was withdrawn, with the intent to commit an offense inside; or
• to commit or attempt to commit a forcible felony.

The "offense" doesn't have to be theft. Under the statute, it is any offense the person intended to commit inside.

Home, Building, or Vehicle: The Definitions Matter

Florida law (s. 810.011) defines the three places a burglary can happen:

• Dwelling: a building or conveyance of any kind, including an attached porch, temporary or permanent, mobile or immobile, that has a roof and is designed to be occupied by people lodging there at night, together with its curtilage (the area immediately around it).
• Structure: a building of any kind, temporary or permanent, that has a roof over it, together with its curtilage. Stores, offices, warehouses, and sheds can all be structures.
• Conveyance: any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car. The statute adds that "to enter a conveyance" includes taking apart any portion of the conveyance.

During a state of emergency declared by the Governor, and in the area the Governor's order covers, the law stretches these definitions, for burglary and for trespass in a structure or conveyance only, to include what is left of a building at its original site, even without a wall or roof, and whatever portions of a vehicle exist.

How Burglary Is Graded

First-degree felony (punishable by up to life)

Under s. 810.02(2), burglary is a first-degree felony, punishable by a term of years up to life, if, in the course of the burglary, the person:

• commits an assault or battery on anyone;
• is or becomes armed inside with explosives or a dangerous weapon; or
• enters an occupied or unoccupied dwelling or structure and either

- uses a motor vehicle as an instrument (not merely as a getaway car) to help commit the offense, and damages the dwelling or structure; or

- causes damage of more than $1,000 to the dwelling or structure, or to property inside it.

"In the course of committing" includes the attempt and the flight afterward.

Second-degree felony

With no assault or battery and no weapon, burglary is a second-degree felony when the person enters or remains in:

• a dwelling, whether or not anyone is home;
• a structure with another person inside;
• a conveyance with another person inside;
• an authorized emergency vehicle; or
• a structure or conveyance when the intended offense is theft of a controlled substance.

Third-degree felony

With no assault or battery and no weapon, burglary is a third-degree felony when the person enters or remains in:

• a structure with nobody inside; or
• a conveyance with nobody inside.

Occupied vs. unoccupied

For structures and conveyances, whether someone was inside at the time changes the degree (second-degree if someone was there, third-degree if not). For a dwelling, the statute makes it a second-degree felony either way.

Riots and states of emergency

If the burglary is committed during a riot or aggravated riot and the riot's conditions helped it happen, or in a county under a state of emergency declared by the Governor and the emergency's conditions helped it happen, the statute raises the degree: a second-degree burglary becomes first-degree, and a third-degree burglary becomes second-degree. The statute defines those conditions as things like civil unrest, power outages, curfews, evacuations, or slower first-responder response. A person arrested for one of these burglaries may not be released until a first appearance before a judge. See Bond & Nebbia Hearings.

Car Burglary

A car burglary charge can come from a window broken at a mall or a beach lot, a door tried in a parking garage, or something taken from a front seat.

Under the statute, a car is a conveyance:

• Entering an unoccupied car with intent to commit an offense inside is a third-degree felony.
• If someone is inside, it's a second-degree felony.
• If the person is or becomes armed with a dangerous weapon, or commits an assault or battery, it's a first-degree felony.

"Entering" a car can include taking apart any part of it. And a felony car burglary is far more serious than the petit theft of whatever was in the front seat.

Firearms raise the stakes. Florida's 10-20-Life law (s. 775.087) lists burglary among the offenses with minimum prison terms when a firearm is possessed. For burglary of a conveyance, the statute sets a 3-year minimum if the person possessed a firearm or destructive device during the offense; for other burglaries, the minimum is 10 years if the person actually possessed a firearm or destructive device. See Robbery & Carjacking and Gun & Weapons Charges.

Trespass vs. Burglary

The difference between burglary and trespass is usually intent.

Trespass in a structure or conveyance (s. 810.08) is willfully entering or remaining in a structure or conveyance without being authorized, licensed, or invited, or refusing to leave after being warned to go. It does not require any intent to commit another crime inside.

• Generally a second-degree misdemeanor.
• A first-degree misdemeanor if someone was inside.
• A third-degree felony if the person was armed with a firearm or other dangerous weapon.

Trespass on other property (s. 810.09) covers land and areas other than structures and conveyances, where notice against entering was given in person or by signs, fencing, or cultivation. Under the current statute it is generally a first-degree misdemeanor, with felony versions for being armed and for certain posted sites. The statute also lists, as trespass, entering the unenclosed curtilage of a home with intent to commit an offense there.

Why it matters in a burglary case. Florida's standard jury instructions list trespass as a possible lesser offense of burglary. If the State can prove someone was where they shouldn't have been, but cannot prove they meant to commit a crime inside, trespass may be where the case belongs, whether through negotiation or at trial. The gap between a felony and a misdemeanor is enormous.

Possession of Burglary Tools

Under s. 810.06, having any tool, machine, or implement with the intent to use it, or let it be used, to commit a burglary or trespass is a third-degree felony.

Owning tools is not a crime. A screwdriver, a pry bar, or a window punch is not illegal by itself. The statute requires intent to use it for a burglary or trespass. These charges often get tacked onto a burglary arrest, and they rise or fall with the State's proof of intent.

Burglary Marked "PREJU": Florida's Hate-Crime Reclassification

Miami-Dade booking records sometimes list a burglary charge with "PREJU" (short for prejudice) in the charge name. That tag refers to Florida's hate-crime reclassification statute, s. 775.085. It has nothing to do with a case being dismissed "with prejudice."

The statute applies to any felony or misdemeanor if its commission evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, or advanced age (older than 65) of the victim. When it applies, the charge moves up one level:

• a third-degree felony becomes a second-degree felony;
• a second-degree felony becomes a first-degree felony;
• a first-degree felony becomes a life felony.

The statute makes it an essential element that the record reflect that the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was in the protected class. That is a separate thing the State has to prove, and we test it.

Home-Invasion Robbery: A Different Charge

Burglary and robbery are different crimes. Home-invasion robbery (s. 812.135) is a robbery that happens when the offender enters a dwelling with the intent to commit a robbery, and does commit a robbery of the occupants. It is a first-degree felony in every form, and punishable by up to life if a firearm or other deadly weapon was carried. See Robbery & Carjacking and Violent Crimes Defense.

How We Defend Burglary Cases

Every case is different, and no lawyer can promise a result. These are the questions we start with.

Intent. Burglary requires intent to commit an offense inside. Why was the person there? Were they drunk, lost, looking for someone, taking shelter, or retrieving their own property? Intent is often argued from circumstances, and circumstances can be read more than one way.

The statute's inference. Florida law (s. 810.07) says that in a burglary trial, proof of entering a structure or conveyance "stealthily and without consent of the owner or occupant" is prima facie evidence of entering with intent to commit an offense. The same rule applies to attempted burglary. That inference depends on two facts, stealth and no consent, and both can be challenged.

Consent, license, or invitation. Entry is not burglary under the first version of the statute if the place was open to the public or the person was licensed or invited to enter. Florida's burglary statutes state the Legislature's intent that consent remain an affirmative defense to burglary, and that a lack of consent may be proven by circumstantial evidence. Roommates, ex-partners, family members, employees, contractors, and friends with a key all raise consent questions. For the "remaining in" versions, the questions become whether permission was actually withdrawn, and when.

Identification and video. Many car and business burglaries are charged from surveillance video, a doorbell camera, or a witness who saw someone running away. Video can be grainy, partial, or from far away. We get the full footage, not just the clip, and look at lighting, angle, clothing, and time stamps. Photo lineups and show-ups have rules, and police don't always follow them.

Fingerprints and DNA. A print on a car door or DNA on a broken window can say someone touched something, but not always when or how. A print on the outside of a car in a public lot, or on an item that moves from hand to hand, may not prove entry at all. We review how the evidence was collected, stored, and compared, and whether the lab work holds up.

Was it really a "dwelling" or "structure"? The degree of the charge can depend on whether a place counts as a dwelling, whether something has a roof, whether an area is curtilage, and whether anyone was inside. Those definitions are written in the statute, and the State has to prove the facts that fit them.

The aggravators. "Armed," "assault or battery," damage of more than $1,000, and "uses a motor vehicle as an instrumentality" each have to be proved. The damage amount is a number, and numbers get inflated.

Searches and statements. Was the car or home searched lawfully? Was there a confession after an unlawful arrest, or without proper warnings? If the evidence came from an illegal stop, search, or interrogation, it may be suppressed. See Motions to Suppress.

Bond After a Burglary Arrest

Bond in burglary cases depends on the charge, the person's record, and the facts. For burglaries during a riot or a declared state of emergency, the statute says the person may not be released until a first appearance. See Bond & Nebbia Hearings.

Immigration Consequences

For anyone who is not a U.S. citizen, a burglary conviction, and sometimes a plea without a conviction, can carry serious immigration consequences. The exact charge, the degree, and the wording of the plea can all matter. We look at the immigration risk before any plea and work with immigration counsel when needed. See Immigration Consequences of Criminal Charges.

What to Do After a Burglary Arrest

1. Don't explain yourself to the police. "I was just looking for my phone" can be twisted into proof of intent.
2. Don't talk about the case on the phone from jail. Jail calls are recorded.
3. Don't contact the owner or witnesses. That can lead to new charges or a no-contact order.
4. Save what helps you: texts or messages showing you were invited, receipts, location history, names of people who were with you.
5. Call us. Video gets overwritten. Early action can preserve it.

Why Choose Dennis Gonzalez Law, P.A.

• Former Miami-Dade prosecutor.
• Defending people since 2012.
• Super Lawyers recognition and an Avvo Rating of 10.0.
• Bilingual office — se habla español.
• We answer 24 hours a day. Call (305) 209-0384.

Frequently Asked Questions

Can I be charged with burglary if I didn't take anything?

Yes. Under Florida law, burglary is entering or remaining with the intent to commit an offense inside. Nothing has to be taken.

Is breaking into a car a felony in Florida?

It can be. Burglary of an unoccupied car is a third-degree felony; if someone is inside, it's second-degree. Being armed or committing an assault or battery makes it first-degree.

What's the difference between burglary and trespass?

Mostly intent. Trespass is being somewhere you're not allowed. Burglary adds the intent to commit an offense inside. Trespass is usually a misdemeanor.

The person let me in. Can it still be burglary?

It can, under the "remaining in" parts of the statute: staying secretly with intent to commit an offense, staying after permission was withdrawn with that intent, or staying to commit a forcible felony. Consent is still a defense, and the facts matter.

They found tools in my car. Is that a crime?

Only if the State proves you intended to use them for a burglary or trespass. Owning tools is not illegal.

What does "PREJU" mean on a burglary booking?

It refers to Florida's hate-crime reclassification law, which raises the degree if the offense evidences prejudice based on certain characteristics of the victim. The State must also prove the defendant knew or perceived the victim was in that group.

How fast can you help?

Our office answers 24 hours a day. Call (305) 209-0384.