Burglary Defense — Polk County FL

Under Florida Statute § 810.02, burglary is a felony at every level — there is no misdemeanor burglary in Florida. Burglary of an unoccupied structure is a third-degree felony carrying up to 5 years. Burglary of a dwelling is a second-degree felony with up to 15 years — or a first-degree felony punishable by up to life if the dwelling was occupied, the defendant was armed, or someone was assaulted. Burglary cases turn on what the State can prove about intent at the moment of entry — and that is often weaker than it looks.

Legally reviewed by Tonmiel Rodriguez, Board Certified Criminal Trial Lawyer — last reviewed June 2026.

What Is Burglary Under Florida Law?

Florida § 810.02 defines burglary as entering or remaining in a dwelling, structure, or conveyance with intent to commit an offense therein — or remaining inside after permission to be there has been withdrawn, with intent to commit an offense. Three elements must be proven: (1) entry or remaining in a protected location, (2) with intent to commit an offense inside, and (3) without permission, or after permission was withdrawn. No forced entry is required. Walking through an unlocked door or an open window is enough for entry under Florida law.

What Are the Degrees and Penalties for Burglary in Florida?

Florida law creates three distinct burglary categories based on what was entered and what occurred inside, with penalties ranging from 5 years to life imprisonment.

Charge	Degree	Max Prison	Notes
Burglary of a conveyance (§ 810.02(4))	3rd Degree Felony	5 years	Vehicle, vessel, trailer, aircraft
Burglary of an unoccupied structure (§ 810.02(3))	3rd Degree Felony	5 years	Building with roof, no dwelling
Burglary of an unoccupied dwelling (§ 810.02(3))	2nd Degree Felony	15 years	Residence, no one present
Burglary of occupied dwelling or structure (§ 810.02(2))	1st Degree Felony	Life	Person present inside
Burglary while armed or assault/battery inside (§ 810.02(2)(a)-(b))	1st Degree Felony (Life)	Life	10-20-Life if firearm used (§ 775.087)

When a firearm is carried during a burglary, Florida’s § 775.087 (10-20-Life) applies: 10-year mandatory minimum for possession, 20-year mandatory minimum for discharge, 25-to-life if someone is injured or killed. These minimums are non-negotiable without prosecutorial agreement to reduce or dismiss the firearm allegation.

Does Florida Require Forced Entry to Prove Burglary?

No — Florida law does not require forced entry to support a burglary conviction under § 810.02. Walking through an unlocked door, entering through an open window, or using a key obtained deceptively all qualify as “entry” under the statute. This surprises many people charged with burglary: the absence of breaking in is not a defense. What matters is whether the person had permission to enter and whether they had criminal intent at the moment of entry.

What Is the “Remaining In” Theory of Burglary?

Under § 810.02, burglary can be committed two ways — by unlawful entry, or by “remaining in” a location after permission to be there has been withdrawn. The “remaining in” theory is frequently overlooked but aggressively charged. A person who enters a store during business hours (with permission) but then hides until closing and steals after hours has committed burglary by remaining — even though the initial entry was legal. Florida courts have upheld burglary convictions on the “remaining in” theory in shoplifting cases, domestic situations, and commercial settings. Whether the State can prove when intent formed — before or after permission was withdrawn — is the critical battleground.

What Are the Best Defenses to Burglary in Florida?

Was There Consent or an Invitation to Enter?

Consent is a complete defense to burglary. If the person charged had permission — express or implied — to be in the dwelling, structure, or conveyance, the unlawful entry element fails. This defense is strongest in domestic situations (where a person has ongoing access to a home), in business settings (where a person is a regular customer or employee), and in co-habitation disputes where ownership of the property is contested. The State must prove the entry was without permission — and when permission is legitimately disputed, that is a winnable argument at trial.

Can the State Prove Criminal Intent at the Moment of Entry?

Burglary requires that criminal intent exist at the moment of entry — or at the moment the defendant remained after permission was withdrawn. Committing a crime inside is not itself proof of intent at the time of entry; the State must prove the intent preceded the entry. In many cases, the only evidence of intent is circumstantial — what was found on the person, what was taken, or what was done inside. I have challenged the intent element in numerous burglary cases where the State’s evidence was entirely post-entry conduct. That is a much weaker case than prosecutors often acknowledge.

Is Misidentification a Defense to Burglary?

Yes — particularly in residential burglaries where no witness observed the defendant inside and the State relies on fingerprint evidence, cell tower location data, or co-defendant testimony. Each of these evidence types has well-established vulnerabilities. Fingerprint evidence from a location a person had lawful access to does not prove burglary. Cell tower data shows general area — not a specific address. Co-defendant testimony is always subject to credibility attack based on deals with the prosecution. I evaluate every identification method the State relies on and challenge what is challengeable.

What About Burglary of a Vehicle — Does “Breaking In” Matter?

Burglary of a conveyance under § 810.02(4) covers motor vehicles, vessels, trailers, aircraft, and sleeping cars. As with all burglary charges, no forced entry is required — reaching into an unlocked vehicle or pulling on a door handle that is already open may constitute entry under the statute. However, the same intent element applies: the State must prove the person entered with intent to commit an offense inside. A person who entered a vehicle to retrieve their own belongings, or who had implied permission to access it, is not guilty of burglary.

Frequently Asked Questions — Burglary Defense in Florida

What is the penalty for burglary in Polk County, Florida?

Burglary of an unoccupied structure or conveyance under § 810.02 is a third-degree felony carrying up to 5 years and a $5,000 fine. Burglary of an unoccupied dwelling is a second-degree felony with up to 15 years. Burglary of an occupied dwelling or structure, or any burglary while armed or where someone was assaulted, is a first-degree felony with up to life imprisonment — plus 10-20-Life mandatory minimums if a firearm was used under § 775.087.

Is burglary a felony in Florida even without forced entry?

Yes. Florida § 810.02 does not require forced entry. Entering through an unlocked door, window, or opening with criminal intent is sufficient for a burglary charge. Burglary is a felony at every level — there is no misdemeanor burglary in Florida. The degree of the felony depends on what type of structure was entered and whether it was occupied.

What is the difference between burglary and trespass in Florida?

The difference is criminal intent. Trespass under § 810.08 is entering or remaining in a structure or conveyance without permission. Burglary under § 810.02 is doing the same thing with the intent to commit an offense inside. Trespass is a misdemeanor (first-degree if armed, up to 1 year). Burglary is a felony (up to life). Whether the State can prove criminal intent at the moment of entry is what separates a misdemeanor trespass from a life felony.

Can I be charged with burglary if I had a key or prior permission to enter?

The State may attempt to charge burglary even when a defendant had a key or prior access — particularly in domestic situations where a relationship has ended. However, if the defendant had a reasonable, good-faith belief that they had permission to enter, that belief is relevant to whether the unlawful entry element is satisfied. Consent disputes are among the most defensible burglary cases in Florida, particularly in co-habitation and domestic settings.

How does a burglary charge affect my record and future sentencing in Florida?

A burglary conviction scores heavily on Florida’s Criminal Punishment Code scoresheet. First-degree burglary (life felony) scores 74 points — a number that by itself almost always requires a minimum-guidelines prison sentence. Second-degree burglary scores 56 points. Combined with any prior record, a burglary conviction can push the scoresheet total past the threshold for mandatory state prison, eliminating probation as an option entirely.

Dwelling vs. Structure vs. Conveyance — Critical Distinctions Under Florida Burglary Law

Florida Statute § 810.011 defines the three categories of locations protected by the burglary statute, and the category determines the degree of the felony charged. These definitions matter enormously in case evaluation:

• Dwelling: A “dwelling” under § 810.011(2) is a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof. The key phrase is “designed to be occupied by people lodging therein at night.” A house, an apartment, a mobile home, and a hotel room all qualify as dwellings. A shed attached to a house by a covered walkway may be part of the curtilage. A detached garage not designed for sleeping is likely a structure, not a dwelling. The dwelling classification matters because burglary of a dwelling — even unoccupied — is a second-degree felony (15 years), while burglary of an unoccupied structure is a third-degree felony (5 years).
• Structure: Under § 810.011(1), a “structure” is any building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof. A store, an office, a warehouse, a school — all qualify as structures. A structure that is being burglarized while occupied triggers first-degree felony exposure. An unoccupied structure carries the third-degree felony baseline. The distinction between a “structure” and a “dwelling” is not always obvious — a building used for commercial purposes during the day but used as a caretaker’s residence at night may be both. I scrutinize the classification of the alleged location in every burglary case because the felony degree directly impacts the sentencing exposure.
• Conveyance: The “conveyance” category in § 810.011(3) means any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car. Burglary of a conveyance is generally a third-degree felony. The “conveyance” category is broader than most people expect — a boat, an RV used as a residence, a trailer, and an aircraft all qualify. A person who breaks into a locked vehicle to steal items inside is charged with burglary of a conveyance, not mere theft.

The “Remaining In” Element — A Frequently Misunderstood Path to Burglary

Florida burglary law provides two independent ways to commit the offense. The first — unlawful entry with criminal intent — is widely understood. The second — “remaining in” a location after permission has been withdrawn, with criminal intent — is less obvious but vigorously prosecuted.

The “remaining in” theory applies when a person initially enters a location lawfully (with permission) but then continues to remain after their permission to be there has been withdrawn, with the intent to commit an offense. Florida courts have applied this theory in several recurring scenarios:

• Retail theft / shoplifting escalation: A customer enters a store lawfully during business hours. The store closes and the customer hides, remaining inside after closing. When they steal merchandise after hours, the State charges burglary by “remaining in” — even though the initial entry was legal. Florida courts have consistently upheld this theory.
• Commercial settings after hours: An employee or visitor remains in an office building after being told to leave or after business hours when access is revoked. With criminal intent to steal or commit another offense, this constitutes burglary.
• Domestic situations: A person who has been told to leave a residence — by the occupant or by law enforcement — but remains concealed inside with intent to commit a crime (assault, theft, property damage) may be charged with burglary by remaining.

The critical legal battleground in “remaining in” cases is proving when criminal intent formed — before or after permission was withdrawn. The State must prove intent at or before the point of remaining. Intent that formed after permission was withdrawn but before any offense occurred is a contested factual question. I challenge the State’s evidence on the timing of intent formation aggressively in every “remaining in” case.

Consent and Invitation as a Defense to Burglary — Real-World Applications

Consent negates the unlawful entry element of burglary. If a person had permission — express or implied — to be in the dwelling, structure, or conveyance at the time of entry, the unlawful entry element is not met and burglary cannot be proven. Consent is not a technical or minor defense — it is a complete defense that can defeat the charge entirely when the factual record supports it.

Consent defense scenarios I have litigated in the 10th Circuit:

• Co-habitation disputes: When two people share a residence and the relationship ends, the question of whether the defendant had an ongoing right of access to the home is genuinely contested. Florida courts have recognized that a person who has lived in a home and maintained belongings there may have implied permission to access it even after a relationship breakdown — at least until that permission is clearly and unambiguously revoked. I document every aspect of the defendant’s connection to the property.
• Parent-child and family relationships: Adult children entering a parent’s home, siblings accessing each other’s property, family members who regularly use each other’s vehicles — all of these relationships potentially create implied consent that undercuts the unlawful entry element.
• Open door / unlocked access: When property is left accessible — an unlocked door, an open garage — the question of whether the property owner implied permission to enter is relevant to the consent analysis. Florida courts have not uniformly held that unlocked access equals invitation, but it is relevant to a reasonable good-faith belief defense.
• Business invitees: Customers in stores, clients in offices, members of organizations — anyone who was lawfully admitted to a location as a business invitee had permission at the time of entry. The consent defense is strongest when the initial entry was clearly authorized and the criminal intent arose only after entry.

Armed Burglary Enhancement — How Weapons Escalate Burglary Charges

Florida Statute § 810.02(2)(b) classifies burglary as a first-degree felony punishable by up to life when, during the commission of the burglary, the defendant was armed with a firearm or other dangerous weapon, or became armed by taking the weapon during the burglary. This is the armed burglary enhancement — it applies regardless of whether the dwelling was occupied and regardless of whether the weapon was used against anyone.

Armed burglary + firearm = 10-20-Life mandatory minimums under § 775.087. Possession of a firearm during a burglary triggers the 10-year mandatory minimum. If the firearm is discharged inside the structure, the 20-year mandatory minimum applies. If someone is injured by the discharge, 25 years to life is mandatory. These minimums apply even if the defendant did not intend to use the weapon, even if no one was home, and even if the defendant was not the one who brought the weapon — Florida law has extended armed burglary liability to all participants in a burglary where any participant was armed under specific circumstances.

Burglary vs. Trespass — Why the Difference Is Enormous

The single element that separates burglary under § 810.02 from trespass under § 810.08 is criminal intent at the time of entry or remaining, as the FAQ above explains. What the degrees look like in practice: trespass is entering or remaining in a structure or conveyance without permission — a first-degree misdemeanor (1 year maximum) if the defendant refuses to leave when asked, or a second-degree misdemeanor (60 days) otherwise, with armed trespass escalating to a third-degree felony (5 years). The same act combined with intent to commit an offense inside is a felony ranging from 5 years to life.

When the State charges burglary and the only evidence of criminal intent is what was found inside (missing property, property found on the defendant), I challenge whether that post-entry conduct proves pre-entry intent beyond a reasonable doubt. If the State cannot establish that criminal intent existed at the moment of entry, the case may not support a burglary conviction — and the appropriate charge is trespass, with a dramatically different sentencing exposure.

Related Practice Areas

• Violent Crimes Defense — Overview
• Robbery & Armed Robbery — § 812.13
• Home Invasion Robbery — § 812.135
• Carjacking — § 812.133
• Theft Charges Defense
• Weapons & Firearms Charges