Burglary Offenses in the Tampa Bay Area


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Simply put, burglary involves entering a house, structure, business, or vehicle without the consent of the owner and with the intent to commit a criminal offense once inside. Burglary is an invasive property crime that can have some very serious, life altering consequences for the accused person.

The crux of a burglary charge is the unlawful entry with the intent to commit an offense. However, a person may also be charged with burglary where the initial entry is lawful, but the person remains inside "surreptitiously" with the intent to commit an offense. An example may be where a person enters a department store, which is at the time open to the general public, and hides inside the
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store until after it closes to steal merchandise. A person may also be charged with burglary if he or she is invited into a home, structure, business, or vehicle and refuses to leave once permission to remain has been withdrawn (coupled with the intent to commit an offense while inside).

If the defendant commits an assault or battery on any other person during the commission of the burglary, or is (or becomes) armed during the commission of the burglary, the defendant is guilty of a felony of the first degree, that is punishable by life. A person may be surprised to learn that reaching into a car to strike the driver or other occupant during a "road rage" incident can result in a first degree felony charge that is punishable by life. A person may also be facing a life sentence where he or she enters a home or vehicle, without permission, and steals a firearm from inside.

Armed burglary and burglary with an assault or battery are each level eight offenses, which means the court must impose a prison sentence upon conviction unless there is a lawful basis to depart from the guideline score. A qualified Florida criminal defense attorney can provide details on when, and under what circumstances, a guideline departure is appropriate. You should know, however, that the circumstances are somewhat limited. Also, if an accused person has been released from prison within three years prior to the commission of an armed burglary, he or she may be classified as a prison releasee reoffender. If so, the court has no choice but to impose the maximum penalty upon conviction. In this case, the maximum penalty is life in prison.

Unarmed burglary to a dwelling, and burglary to a dwelling that is not coupled with an assault or battery, are each second degree felony felonies. A second degree felony is punishable by up to fifteen years in state prison. Burglary to a dwelling is a level seven offense on Florida's sentencing guidelines, which translates into mandatory prison time (in the absence of a lawful departure basis). The classification and offense level of residential burglary is the same whether the dwelling is occupied or not. Here is the difference: if the dwelling is occupied, and the accused person was released from prison within three years prior to the commission of the residential burglary, he or she may be classified as a prison releasee reoffender. In that scenario, the court would have no choice but to impose a fifteen year sentence upon conviction (the sentencing guidelines don't apply where the person is designated a prison releasee reoffender).

A person may be prosecuted for second degree felony burglary where the person enters an occupied structure (i.e. a shed or detached garage) or an occupied conveyance (vehicle) with the intent to commit an offense inside. The charge is also viable where the involved structure or conveyance is unoccupied, and the offense intended to be committed is theft of a controlled substance.

Where the accused person enters an unoccupied structure or an unoccupied conveyance, is not armed, does not have the intent to steal a controlled substance, or does not commit an assault or battery, he or she is guilty of a felony of a third degree felony. In Florida, a third degree felony is punishable by up to five years in state prison. These classifications of burglary offenses will not, in and of themselves, score mandatory prison on the sentencing guidelines. This does not mean, however, that the court cannot impose a prison sentence if the court determines it to be appropriate under the circumstances. Also, a person will accumulate points for other charged offenses before the court for sentencing and for prior criminal convictions; the aggregate score could put a person charged with a third degree felony burglary into the mandatory guideline range.

Potential defenses to a burglary charge vary greatly depending on the circumstances of the case. In one instance, the state may have some issues proving identification (i.e. that the person charged is actually the person who committed the crime) and in another instance, the issue may involve proving the accused person had formed the intent to commit a crime prior to making entry. In yet another scenario, the defense may argue that the accused person had permission to both enter and remain in the dwelling, structure, business, or conveyance, and permission was never withdrawn. As with all criminal cases, the underlying facts and admissible evidence will usually determine the most viable defense.

As you a can see, burglary offenses are not taken lightly by the Florida legislature: the penalties can be devastating. If you have been charged with a burglary offense, you should consult with a Tampa Bay area criminal defense attorney to discuss the circumstances of your case and what options may be available to you.

ABOUT THE AUTHOR: Donald J. Kilfin, The Kilfin Law Firm, P.C.
Donald J. Kilfin is a former Pinellas county state prosecutor. He owns and operates The Kilfin Law Firm, P.C., a Tampa Bay area DUI and criminal defense firm representing clients in St. Petersburg. Clearwater, Tampa, New Port Richey, Dade City, and Bradenton.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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