Burglary, trespassing, theft and breaking and entering tend to be spoken of as though they are the same thing, and indeed a person often can be charged with all three at the same time. In fact, while these are all serious offenses that can result in jail time, each is a separate and distinct crime.

Let’s start with burglary. In Florida, a person commits burglary by either:

  • Unlawfully entering a building or a “conveyance” (typically an automobile) with the intent to commit a crime; or
  • Lawfully entering a building or conveyance, but then remaining without permission, with the intent to commit a crime (a customer hides out in the stockroom of a store until after closing and then breaks into the cash register), or
  • Lawfully entering with the intent to commit a forcible felony (a robber holds up a convenience store).

Many people are surprised to learn that a burglary may occur even if the intended crime isn’t carried out. Say someone enters your house through an open window with the intent of stealing your possessions, but is frightened off by your dog. As soon as he came through the window with the intent to steal, a burglary was committed, even though there was no theft.

The difference between burglary and trespassing is in intent. To prove trespass, the prosecution needs to show that the defendant deliberately entered someone else’s property without permission. For a burglary conviction, they must also prove the defendant intended to commit another crime once inside. While the “other” crime is most often theft, the intent to commit any crime – destruction of property, arson, assault – makes the unlawful entry a burglary.

Types of Burglary

A first-degree burglary charge requires proof that the defendant assaulted someone, was carrying a dangerous weapon or caused property damage of more than $1,000. Depending on the particular facts of the crime and prior criminal history, the defendant may be sentenced to as long as life in prison if convicted.

A second-degree burglary occurs when the defendant entered a dwelling, unarmed and without assaulting anyone, with the intent to commit a crime, usually theft. It does not matter whether the owner or occupant was present at the time. Entering a structure such as an office building while the victim is present can also be charged as a second-degree burglary.

Third-degree burglary includes entering an unoccupied structure or conveyance.


Among the defenses that a person charged with burglary may be able to raise are:

  • Consent – If the defendant can show he or she had permission to be present, there has been no burglary, even if another crime – theft or assault, for example – occurred. If a business is open to the public, consent to be present during regular hours is implied. It does not extend to any space clearly marked as open only to employees or staff, however.
  • Lack of Intent – Intent to commit a crime ordinarily is established by the surrounding facts and circumstances. Most often, the fact that the defendant entered secretly is enough. However, if he or she can show some other reason for trespassing – seeking shelter from a storm, for example – there has been no burglary.

The Importance of Experienced Legal Representation

The lawyers at Orner Law, LLC, have many years of experience representing South Florida residents charged with burglary and other serious crimes. Contact us today at (561) 347-1336 to schedule an initial consultation.