Burglary – Trespass

Experienced former prosecutor and Board Certified Criminal Defense Attorney Larry Sandefer is available to help you.  When you need experience, call us.

What is a Burglary?

Burglary and robbery are often confused.   People say ‘my house was robbed’.  Houses get burglarized, people get robbed.   Robbery involves a confrontation with a person and a taking.  As a result the legislature has made robberies generally more serious offenses than burglaries.

The Florida legislature has defined a burglary as ‘entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein’. The offense referred to can be any type of criminal offense such as theft, vandalism, or assault.  A burglary is not just stealing something from a house.  Trespass to a house or vehicle is a misdemeanor and is much less serious than a burglary to a house or car.  The distinction between a burglary and a trespass is whether a person either committed an offense while in a structure or vehicle or intended to. If there was no offense committed and no intent to commit an offense, it is a trespass. An example of a trespass would be where someone breaks in to a car or house to sleep, or enters the wrong house without permission.  We find that often a defense to a burglary may arise from the  lack of criminal intent of the person accused.


Trespass is normally a misdemeanor offense.  However, if a person is armed with a dangerous weapon during a trespass the offense is upgraded to a third degree felony. Trespass can also occur to posted land. Certain requirements must be met as far as the posting for that to be a crime.

We often hear the question “I was charged with a car burglary, but I did not take anything?”,   or   “It was just an argument all I did was reach in the window and slap him, I did not burglarize anything!”

There are different types of burglaries.  You do not have to go in to a house or building for a burglary to occur.   Only part of your body needs to enter in to a structure or vehicle.    Breaking the ‘plane’ of the window is the same as entering the house or car.  So, if someone reaches into a vehicle and hits someone, that can be  a burglary with an assault under Florida law.  If an intruder did not steal anything but the state can prove that they  intended to steal it can still be charged as a burglary.  It may be difficult for the state to prove intent and this may be a viable defense to a burglary charge.

Auto Burglary

A burglary to a vehicle or to a business is generally a third-degree felony with a maximum penalty of five years in prison. Entering a vehicle to take money or property is a burglary. We see a lot of situations where someone takes something from a car or building to support a drug habit. Please see the section on drug charges on this website since much of the information and alternatives available on drug charges may apply also to burglary charges.  All consultations are free and chances are we have handled matters just like your case, so, call us and ask us if we can get you in a diversion program, get the charge dismissed,  or if you have legal mitigation that we can use in your defense, or just to find out about your options.  There is no cost and no obligation to meet with us.

Residential Burglary

A burglary to a residence is the same thing as burglary to a dwelling.  A dwelling according to Florida Statute 810.011 means a building  of any kind which has a roof over it and is designed to be occupied by people lodging in it at night.  It includes the curtilage of the building also. Curtilage means the area surrounding the building whether the area surrounding the building  is covered or not, such as a driveway or porch.  A residential burglary is a second degree felony and carries a maximum of 15 years in prison.  On the Florida Sentencing code a residential burglary even  with no prior offenses (no record) and no other present charges, carries a presumptive minimum sentence of approximately 21 months in state prison up to 15 years.  It is a serious offense even if a person has no prior record.  If an assault occurs during a burglary the degree of offense is much more serious.  We can discuss with you things that we have done in the past and what we may be able to do in your case to avoid this minimum sentence.  And, in all cases, we will want to meet with you to go over the facts of your case and any and all defenses that may be available in your case.  Do not assume you do not have a legal or factual defense to your case. Talk to a respected and experienced burglary attorney and go over your case.  Choose the right attorney for your case.

Burglary with an Assault and Armed Burglary

A burglary to a dwelling or a vehicle is a felony of the first degree punishable by up to life imprisonment if in the course of committing a burglary or trespass the offender makes an assault on a person or commits a battery upon a person.  If a person arms himself or herself within the dwelling or structure with a dangerous weapon or firearm (armed burglary) the charge can be enhanced to a first degree felony carrying a sentence of up to life also.  Surprising to most people is that simply causing over $1,000.00 in damage to the dwelling or structure makes the burglary a first degree felony burglary. You do not have to enter a structure with a weapon for the charge to be armed burglary. Most people do not realize that if someone steals a weapon or firearm during a burglary it becomes an armed burglary.  They do not have to enter with a weapon or even threaten to use a weapon, just take one.

Another serious burglary charge that people are surprised to know is that if someone reaches into someone’s car just through the window and hits them, they can be arrested and charges for a first degree felony because they ‘entered’ by reaching in, and committed an assault while any part of their body was inside of the structure.

A home invasion is a type of burglary or armed robbery.

Defenses to Burglary

Every case is unique.  Yours is too, and you as an individual are different than everyone else.  These factors can and should be taken in to account.     The state has the burden of proving the intent someone had when they entered or tried to enter.  Lack of proof of the intent to commit a crime in the residence, business,  or vehicle is a valid defense to the charge of burglary.  Mental condition or disorders can come in to play in issues of intent.  We may explore an evaluation or past mental health history in building a  defense.      Identification issues arise often in burglaries since most often people are not arrested at the scene of a break in.   Fingerprints may or may not have been found.  If found, where they were found is important, the degree of certainty of the identification of the fingerprint, did the person have a reason for their fingerprint to be at the location, could it have been transferred?   DNA may or may not have been located.  DNA experts can be consulted if that is an issue.  Lineups, one man show ups, and other identification matters  need to be looked at very closely.                There may be entry issues.  There may be an argument to be made for permission to enter or ‘implied’ permission.  If an arrest is improperly performed or a search was without proper consent or was coerced, or was without probable cause, suppression of evidence may be a remedy  and one we would look at closely.  There are also practical approaches and mitigation that can work in your favor on your case. We have had extensive experience with all types of burglary accusations as well as motions and litigation all of the way through trials.

There are many other circumstances which may come into play on a burglary charge depending on the individual circumstances and facts involved. Possessing burglary tools is also a felony in the state of Florida. Anything can be a burglary tool but the state has to prove that it was intended to be used in a burglary. Simply having a screw driver in one’s pocket may not be enough to sustain a possession of burglary tools accusation.

Often times burglaries are drug related. This is especially true where people may be taking items in order to sell them to sustain their addiction or other drug problems. Depending on the situation, alternatives may be available in sentencing negotiation and in mitigation of the penalties if the burglary can be proven but it is drug related. We can discuss these matters with you if they may relate to your case.

A Sentencing Departure may be something to explore in your case. Generally, a burglary to a dwelling is a second-degree felony if there is no one present and no aggravating factors. A second-degree felony carries a maximum penalty of 15 years in prison but under Florida’s sentencing code it may call for the Judge to give a minimum sentence. Even though it may be only one count of residential burglary the sentencing code calls for a minimum prison sentence.  There may be are grounds in your case  for the Judge to depart or go below the sentencing code, or we may be able to convince the state to reduce the sentence or even reduce the charges. A trial may be a good option for you depending on the circumstances. Larry Sandefer has tried over 250 jury trials and defended thousands of criminal cases.   He will sit down with you and go over your case in detail and  discuss with you  what your defenses are and together decide what  the best approach to your case will be. It is important that you are a part of this process and  help in your own defense.

The Florida punishment code is used by Judges and prosecutors to determine penalties which a judge may be required to impose on certain types of crimes, including burglary. A first offense burglary to one automobile may not call for mandatory prison sentencing, although a judge has the option of any sentence he or she believes is appropriate up to the maximum, with certain exceptions. However, the punishment code calls for a minimum prison sentence on many other types of burglaries, such as a burglary to a dwelling or a burglary where a weapon is involved.

What if I score out to prison on a burglary charge?  Will Mitigation Help me?

As mentioned above, the punishment code does allow in certain circumstances for a judge to “depart” from the guidelines and go below the guidelines if certain criteria apply.   In those situations a Departure Hearing can be set to present information, facts, and mitigation to the Judge to see if the Judge can and will go below what the legislature has called for.  We have been successful in using the departure hearing on many cases.  Burglary offenses are taken seriously in Florida and it is important that a person accused of a burglary and especially  more than one burglary obtain the advice and representation of an experienced Florida burglary defense attorney. When you are looking around for the best burglary defense attorney to help you, please check out our experience and reputation, then call Sandefer law firm. The initial consultation is at no charge and will be held in confidence.

Burglary of any type with a firearm can be enhanced to a higher degree crime. Most burglaries in which a firearm is possessed carry a minimum mandatory prison sentence. These fall under Florida’s tough 10-20-Life laws.   The state attorney’s office has wide discretion over what type of charge file and to proceed on. The facts of the case may allow us to negotiate with the state attorney for a reduction the charge to a lower degree burglary or to a trespass, theft or other charge. It is important to consult with an experienced Pinellas County burglary defense attorney as early as possible if you are suspected of or arrested for a burglary charge especially an attorney who has attained Board Certification in Criminal Trial Law. Within approximately 10 days after an arrest the state attorney will review the arrest charge to determine if it will proceed with that charge or a different charge. Experience has taught us that the best time to begin talking with the prosecutor on your case is before they have filed a formal charge.

That is one of the reasons why Sandefer law firm encourages you to seek legal representation early. It is at this early stage where the best opportunity exists to discuss matters with the state attorney’s office and potentially lessen the exposure on a charge. If you are arrested or questioned anywhere in Pinellas County, including St. Petersburg, Clearwater, Largo, Dunedin, Tarpon Springs, or any municipality or unincorporated area, all matters are referred to the state attorney’s office on 49th St. for review and prosecution. If you are arrested anywhere in Pasco County including New Port Richey, Port Richey, Hudson, or Dade City all matters are still referred to the state attorney’s office in the Sixth Judicial Circuit which is headquartered in Pinellas County.  It is the same elected state attorney which has a branch office in New Port Richey and in Dade City.  Your initial consultation or meeting is at no charge and, importantly, is strictly confidential. There is absolutely no obligation. Please call or e-mail us to discuss your case and the alternatives or options available to you.

When Experience Counts, Count on Experience. You can Count on Sandefer Law Firm.

Larry Sandefer – Criminal Defense Attorney , Noted Florida Burglary Defense Lawyer