For purposes of this entry, I will only be discussing burglary of a dwelling.
Burglary of a dwelling, whether occupied or unoccupied, is a felony of the second-degree, and punishable by a maximum of 15 years in state prison. A dwelling, unlike a structure (non-residential building) or a conveyance (car), is a place where people live or is intended for people to live.
While there is no mandatory prison time for a burglary, the bottom of the sentencing guidelines for a dwelling burglary offense is 21 months state prison.
Burglary is the unlawful entry onto (or into) the property of another with the intent to commit a crime therein.
Trespass, a misdemeanor, is simply the unlawful entry onto (or into) the property of another.
For a burglary charge to be filed, the State of Florida must be able to prove that the accused person intended to commit a crime while on or inside the property of another. The most common "crime therein" in a burglary situation is, of course, theft.
You can be charged with burglary by entering the fenced-in curtilage (outlying property) of a dwelling provided the State can prove that the accused had the intent to commit a crime. This may include criminal mischief (such as damage to the home or property), or theft (if you steal something from the property).
However, if there is no evidence, or weak evidence, of intent to commit a crime on or in the property, the most the accused can be charged with is trespass.
This can also apply even if somebody breaks into a home. Florida courts have held that the act of criminal mischief itself while trying to enter the home (such as breaking a window or prying a door) cannot be used to satisfy the "crime therein" element of burglary. There must be some evidence that the accused intended to commit a crime inside of the property.
However, the State could always charge somebody with attempted burglary in this situation, which is only a third-degree felony. Still, the State must prove that the accused attempted to commit a crime inside of the property.
Intent is a state of mind. Prosecutors like to argue that it is a question of fact (therefore a question for the jury) as to whether or not the accused had the intent to commit a crime inside of the home.
However, as a criminal defense attorney, I always analyze my burglary cases to see what evidence suggests that intent?
Now if somebody is accused of breaking into a home and the homeowner reports that property is missing from inside the home, it is likely that the accused will be charged with burglary.
However, if nothing is taken from inside of the home, it is very likely that the accused had just entered the house for no reason. Many times, people who are on drugs or who are mentally ill may wander off and do unexplainable things. However, their activity does not rise to the level of a felony.
I always try to get felony charges reduced to misdemeanors during the prefile stage of a case. While the client is still charged with a crime, it is much better to face misdemeanor charges than felony charges. You cannot be sent to prison for a misdemeanor.
If charged with trespass, it is very possible that Pretrial Diversion (PTD) will be available.
When I was a prosecutor with the Miami-Dade State Attorney's Office, I handled thousands of burglary cases. Many of those cases were merely trumped-up trespass cases. A good defense attorney can spot the difference.
Felonies are serious business, but misdemeanors can be resolved more easily. Also, misdemeanor convictions do not deprive people of their civil rights, nor do they carry the stigma of felony convictions.
If you or a member of your family are facing burglary charges, call me to discuss your options. We may be able to get your charges reduced, or possibly dismissed.