Burglary Charges in Florida: Why What You Entered — and Who Was Inside — Matters More Than What You Took

Burglary in Florida is entering — or in some situations, staying inside — a dwelling, structure, or conveyance with the intent to commit an offense in there. That is the whole crime. The State does not have to prove you broke anything to get in, and it does not have to prove you took anything once inside. Under § 810.02, Florida Statutes, every burglary is a felony: the floor is a third-degree felony punishable by up to 5 years in prison, and the ceiling — when an assault, a battery, or a weapon is involved — is a first-degree felony punishable by up to life. Where a case lands on that ladder turns on three questions: what kind of place was entered, whether anyone was inside, and what happened in the course of the offense.

If you or someone you care about has been arrested for burglary in Broward County or anywhere in South Florida, the time to involve a defense attorney is before the State’s charging decision is made, not after. Contact MK Law — the phone is answered 24/7.

What the State actually has to prove

For offenses committed after July 1, 2001, § 810.02(1)(b) defines burglary two ways:

• Entering with intent. “Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter.”
• Remaining inside — even after a lawful entry. “Notwithstanding a licensed or invited entry,” it is also burglary to remain in the place surreptitiously with intent to commit an offense, to remain after permission has been withdrawn with intent to commit an offense, or to remain in order to commit or attempt a forcible felony as defined in § 776.08.

Two things follow from that definition, and both surprise people.

First, the “offense therein” can be anything — theft is the classic allegation, but the statute is not limited to it. Second, intent is the element the whole charge stands on, and intent is invisible. Prosecutors prove it by inference, and the Legislature has given them a head start: under § 810.07, proof of entering “stealthily and without consent of the owner or occupant” is prima facie evidence of entering with intent to commit an offense. That presumption is where many burglary cases are really fought — because a person who entered openly, or who had some claim of permission, does not fit it.

Three defined words decide the degree

Florida grades burglary by the kind of place involved, and the definitions in § 810.011 are broader than everyday usage:

• Dwelling — “a building or conveyance of any kind, including any attached porch… which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.” A house is a dwelling even when nobody is home — the test is what the place is designed for, not whether it was occupied that night.
• Structure — “a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.” Offices, stores, sheds, warehouses.
• Conveyance — “any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car” — and “to enter a conveyance” includes taking apart any portion of it. What people call “car burglary” is charged under the same statute as breaking into a building.

The word curtilage matters more than its obscurity suggests: both “dwelling” and “structure” include the curtilage — the grounds around the building — so a burglary charge can be based on entry into a fenced yard, not just the building itself. Florida courts have generally required some form of enclosure before treating the surrounding ground as curtilage, which makes the physical layout of the property a genuinely litigable issue in these cases.

The degree ladder

Degree	What the State alleges	Statutory basis	Maximum penalty
Third-degree felony	Burglary of a structure or conveyance with no other person inside, offender unarmed, no assault or battery	§ 810.02(4)(a)–(b)	5 years prison, $5,000 fine
Second-degree felony	Burglary of a dwelling (occupied or not); an occupied structure or conveyance; an authorized emergency vehicle; or a structure/conveyance where the intended offense is theft of a controlled substance	§ 810.02(3)(a)–(f)	15 years prison, $10,000 fine
First-degree felony	In the course of the burglary the offender assaults or batters any person, is or becomes armed with explosives or a dangerous weapon, or uses a motor vehicle as an instrument to damage the dwelling/structure or causes damage over $1,000	§ 810.02(2)	Up to life imprisonment

Maximum penalties per § 775.082 and § 775.083.

A few rungs deserve emphasis:

• A dwelling is second-degree even when empty. Burglary of an unoccupied house carries a 15-year maximum. Occupancy moves structures and conveyances up the ladder, but a dwelling starts there.
• “Is or becomes armed” includes arming yourself inside. A person who enters unarmed and picks up a weapon inside the premises — including, in the classic scenario, one taken during the burglary itself — faces the first-degree version.
• The life-exposure tier does not require injury. An assault (no touching required) in the course of the offense is enough under § 810.02(2)(a).
• Riots and declared emergencies raise the stakes. Under the 2025 text of § 810.02, a burglary facilitated by conditions arising from a riot or a governor-declared state of emergency is bumped a full degree — a second-degree burglary becomes first-degree, a third-degree becomes second. In hurricane-prone South Florida, that enhancement is not a hypothetical.

Burglary, trespass, or theft? Three different crimes

Because burglary lives at the intersection of “you were somewhere you shouldn’t be” and “you meant to do something there,” it is regularly confused with its neighbors. The differences are stark:

	Burglary (§ 810.02)	Trespass (§ 810.08)	Theft (§ 812.014)
Core allegation	Entering/remaining with intent to commit an offense inside	Entering/remaining without authorization — no criminal intent beyond that	Taking or using property with intent to deprive
Must anything be stolen?	No	No	Yes — the taking is the crime
Entering anything?	Yes — dwelling, structure, or conveyance	Yes — structure, conveyance, or property	No — location irrelevant
Charge range	Always a felony: 3rd degree up to life	Second-degree misdemeanor up to 3rd-degree felony (armed)	2nd-degree misdemeanor up to 1st-degree felony, graded mostly by value

That comparison is also the map of where charge-reduction fights happen. The gap between trespass of a structure (a misdemeanor covered in our guide to Misdemeanor Criminal Charges in Florida) and burglary of that same structure (a felony) is the intent element — and nothing else. And when property actually was taken, the State often charges burglary and theft; the theft side has its own detailed grading ladder, covered in Grand Theft Charges in Florida.

One more charge travels with this family: under § 810.06, possessing “any tool, machine, or implement” with intent to use it (or let it be used) to commit a burglary or trespass is a separate third-degree felony. The statute names no specific tools — an ordinary screwdriver or flashlight can qualify if the State can prove the intent — which makes it both a common add-on count and, sometimes, the count most vulnerable to challenge.

Where burglary cases are actually defended

Every case is different, and nothing here is a prediction about any particular case. But the structure of § 810.02 tells you where the litigable ground usually is:

• Intent. The State must prove what was in a person’s head at the moment of entry (or while remaining). When the § 810.07 stealth presumption does not fit — an open entry, daylight, no concealment — the intent element has to be built from circumstances, and circumstances can point more than one way.
• License or invitation. Entry into premises “open to the public,” or with the owner’s permission, is outside the entering-with-intent branch of the statute entirely. Cases involving ex-partners, roommates, former employees, and disputed permission are burglary prosecutions on paper and consent disputes in fact.
• The place and its occupancy. Whether the space fits “dwelling,” whether anyone was “in the structure at the time,” whether a yard is really curtilage — each of these moves the case up or down a full felony degree, which is why they get litigated hard.
• What “in the course of committing” covers. The first-degree enhancers attach to conduct in the course of the offense — the timing and connection of an alleged assault or arming is its own battleground.
• The charging decision itself. In the window between arrest and the State Attorney’s filing decision, defense work can influence whether the case is filed as burglary, as trespass, as theft, or not at all. We explain that window in What Do Pending Criminal Charges Mean in Florida? and the paths to ending a case in How to Get Criminal Charges Dropped in Florida.

For an accused with little or no record facing the third-degree version, pretrial intervention under § 948.08 can sometimes offer a route to dismissal — eligibility is limited and requires several consents, so it is a possibility to evaluate with counsel, not an entitlement.

A felony conviction of any degree carries consequences past the sentence itself: a permanent record visible to employers and landlords, loss of certain civil rights, and — if the case ends without a conviction — a possible path to sealing or expungement, which we cover in If Charges Are Dismissed, Do You Have a Criminal Record?.

Talk to a Fort Lauderdale burglary defense attorney

MK Law defends burglary, trespass, and theft cases across Broward County and South Florida. The degree of the charge — and often whether a felony gets filed at all — is shaped early. Call our criminal defense team at 954.865.6032, any hour, or reach us here. Se habla Español.

Frequently asked questions

Is burglary always a felony in Florida?

Yes. The lowest form — burglary of an unoccupied structure or conveyance — is a third-degree felony with a 5-year maximum. There is no misdemeanor burglary in Florida; the misdemeanor neighbor is trespass, a different crime with a different intent element.

What’s the difference between burglary and breaking and entering?

Florida law does not require “breaking” at all. Walking through an unlocked door — or entering a fenced yard — can be burglary if the State proves entry without license or invitation plus intent to commit an offense inside. “Breaking and entering” is a colloquial label, not the legal standard.

Is breaking into a car burglary?

Yes. A motor vehicle is a “conveyance” under § 810.011, so entering one with intent to commit an offense inside is burglary — a third-degree felony if the vehicle is unoccupied, second-degree if someone is in it. The statute is explicit that “to enter a conveyance” includes taking apart any portion of the vehicle.

Do they have to prove I stole something?

No. Burglary is complete at the moment of entering (or unlawfully remaining) with the required intent. Nothing needs to be taken, and nothing needs to succeed. That said, what happened — or didn’t happen — inside is often powerful circumstantial evidence on the intent question, in either direction.

Can burglary charges be dropped or reduced?

Burglary charges can end in many ways short of trial — declination, reduction to trespass, dismissal motions, or diversion for eligible first-time accused. No outcome is ever guaranteed, and the alleged victim cannot drop the charge themselves; that decision belongs to the State Attorney. The realistic paths are covered in How to Get Criminal Charges Dropped in Florida.

What if I was invited in?

A licensed or invited entry defeats the entering branch of burglary — but not necessarily the whole statute. Remaining inside surreptitiously, staying after permission is withdrawn, or remaining to commit a forcible felony can still be charged as burglary under § 810.02(1)(b)2. Cases built on withdrawn permission are heavily fact-dependent, which is exactly why they need to be worked early with an attorney.