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Burglary of a Dwelling Attorneys in Orlando, FL

What is Burglary of a Dwelling?

In the State of Florida, burglary of a dwelling is a serious criminal offense that can carry severe penalties. According to Florida Statutes § 810.02, burglary of a dwelling occurs when an individual “enters a dwelling with the intent to commit an offense therein,” unless the premises are open to the public at the time or the individual has been licensed or invited to enter or remain. A “dwelling” refers to a building or conveyance of any kind, including any attached porch, which is designed to be occupied by people lodging therein at night.

What are the Elements of Burglary of a Dwelling in Florida?

In Florida, burglary of a dwelling is a complex legal concept with specific elements that the prosecution must prove beyond a reasonable doubt to secure a conviction. These elements are outlined under section 810.02 of the Florida Statutes. Let’s delve into each of these elements in detail:

Entering a Dwelling with Intent to Commit Another Offense

The first element involves entering a dwelling with the specific intent to commit another offense inside. This could range from theft to assault or any other criminal act. The key aspects to consider here are:

Method of Entry: The entry could be by force, such as breaking a window, or without force, such as walking through an unlocked door.

Intent: The prosecution must prove that the defendant had a specific intent to commit a crime once inside the dwelling. Mere entry without intent is not sufficient for a burglary charge.

Exceptions: If the dwelling is open to the public at the time of entry, or if the individual had explicit or implicit permission to enter, then this element is not met.

Remaining in a Dwelling Surreptitiously or After Permission Was Withdrawn

The second element focuses on situations where an individual remains in a dwelling either secretly or after permission to stay has been revoked, with the intent to commit another offense. Key points include:

Surreptitious Presence: This means staying in the dwelling in a manner that attempts to avoid detection.

Withdrawal of Permission: If someone was initially allowed in the dwelling but then asked to leave, remaining in the dwelling with criminal intent could fulfill this element.

Remaining to Commit or Attempt to Commit a Forcible Felony

The third element involves remaining in a dwelling with the intent to commit or attempt to commit a “forcible felony” after initially being allowed inside. Forcible felonies include crimes like murder, sexual battery, and robbery among others.

Initial Permission: The individual must have initially been allowed inside the dwelling.

Forcible Felony: The prosecution must prove that the defendant intended to commit a specific forcible felony as defined under Florida law.

Definition of Dwelling

According to section 810.011, Florida Statutes, a dwelling is defined as any building or conveyance that has a roof over it and is designed to be occupied by people lodging therein at night. This also includes the curtilage, which is the closely surrounding area like a yard or garden adjacent to the dwelling.

Importance of Proving All Elements

For a conviction to be secured, the prosecution must prove each of these elements beyond a reasonable doubt. Failing to prove even one element could result in the charges being dropped or reduced. Therefore, understanding these elements is crucial both for the prosecution and the defense.

If you are facing charges for burglary of a dwelling, it is imperative to consult an experienced criminal defense attorney who can scrutinize these elements in light of your specific case. Legal representation can make a significant difference in the outcome of your case.

Penalties for Burglary of a Dwelling in Florida


Penalties for Burglary of a Dwelling in Florida
Type of Burglary Penalty
Simple Burglary of a Dwelling Second-degree felony, up to 15 years of prison or probation, and a $10,000 fine. The charge carries a severity level of 7 (or 56 points) under the Criminal Punishment Code. Assuming there are no aggravating circumstances (such as prior criminal convictions), this translates to a minimum permissible sentence of 21 months in prison. The judge cannot impose a lesser sentence unless special circumstances exist for what is called a downward departure from the minimum sentence.
Enhanced Burglary of a Dwelling First-degree felony, up to 30 years of prison or probation and a $10,000 fine. The charge carries a severity level of 8 (or 74 points) under the Criminal Punishment Code. Assuming there are no aggravating circumstances, this translates to a minimum permissible sentence of 34.5 months in prison.

How to Fight a Charge of Burglary of a Dwelling in Florida

Defending a burglary charge involves meticulous analysis of the evidence, keen understanding of the law, and strategic implementation of defensive arguments. Here are some common defenses that Leppard Law can utilize:

Lack of Intent:

The concept of “Lack of Intent” is a critical element in many criminal charges, particularly for offenses like burglary. In legal terms, “intent” refers to the mental determination or purpose to perform a particular act. In the case of burglary, for example, intent could involve the planned commitment of theft, assault, or some other crime once inside the property.

“Lack of Intent” means that the accused did not have the mental state required to fulfill the “intent” element of the charge. This could be particularly relevant in cases where someone has entered a property but claims they had no plan or desire to commit any crime once inside. If you were simply in the wrong place at the wrong time or mistakenly entered a property, proving “Lack of Intent” could be key to your defense.

For example, if you walked into a home thinking it was an open house, you might not have had the intent to commit a crime inside. You were there under the assumption that you were permitted to be in that location, making it a case of “mistake of fact.”

Legal defenses based on “Lack of Intent” often rely on both factual evidence and circumstantial considerations. Surveillance footage, eyewitness accounts, and even the accused’s behavior during the alleged incident can all play a role in establishing a “Lack of Intent.”

It’s worth noting that the prosecution generally has the burden of proving intent beyond a reasonable doubt. This means that if there’s credible evidence or reasonable doubt regarding your intent to commit a crime, the charge against you might be reduced or even dismissed altogether.

Consent:

Burglary of a Dwelling is not committed when the evidence shows that an authorized person had given you consent to enter or remain in the property. Even if one person refuses to give you consent, if another person does give consent, then you cannot be found guilty unless the State proves that the other person had no legal authority to provide consent. (Reversing burglary conviction when two residents refused consent but the State failed to disprove the defendant’s claim that a third resident had provided consent). Likewise, you cannot commit a burglary of a store or other similar location if you only stay in the part of the building that is open to the public (although you may still receive a Robbery charge in some circumstances).

In the context of criminal law, particularly in cases involving charges like burglary or trespassing, “Consent” serves as an essential factor in determining the legality of one’s presence in a particular space. The term refers to the explicit permission granted by a property owner or an authorized individual allowing someone else to enter or remain on that property.

When consent is given, the legality of one’s presence in that place is generally established, and charges like trespassing or burglary may not be applicable. However, consent has its complexities and limitations:

  1. Explicit vs. Implied Consent: Consent can be either explicit (verbally stated or written) or implied (suggested through behavior or circumstances). For instance, a “Welcome” sign at the entrance of a store implies consent for customers to enter during business hours.
  2. Conditional Consent: Sometimes, consent is granted conditionally, often based on specific behaviors or actions. For example, you may be allowed to enter a nightclub on the condition that you don’t cause any disturbances.
  3. Revocation of Consent: Consent can also be revoked at any time. If you’re asked to leave a property after initially receiving consent to be there, failing to leave may result in trespassing charges.
  4. Limited Scope: Consent may be limited to specific areas of a property or for specific time periods. For example, being invited into someone’s living room doesn’t grant you access to their bedroom.
  5. Legally Incapable: In some cases, an individual may not be in a legal position to give consent. This can include minors, individuals under the influence of substances, or individuals with certain mental disabilities.
  6. Fraudulent Consent: Consent obtained through deceit or false pretenses is generally not considered valid in a court of law.
  7. State Laws: The legal understanding and implications of “consent” can also vary by jurisdiction. Some states have more stringent requirements for what constitutes valid consent.

Understanding consent in all its complexity is crucial when facing charges like burglary or trespassing. A defense strategy involving the concept of consent would aim to prove that you had reasonable grounds to believe that you were allowed to enter or remain on the property in question.

Mistake of Fact:

In the context of criminal law, particularly in cases involving charges like burglary or trespassing, “Consent” serves as an essential factor in determining the legality of one’s presence in a particular space. The term refers to the explicit permission granted by a property owner or an authorized individual allowing someone else to enter or remain on that property.

When consent is given, the legality of one’s presence in that place is generally established, and charges like trespassing or burglary may not be applicable. However, consent has its complexities and limitations:

  1. Explicit vs. Implied Consent: Consent can be either explicit (verbally stated or written) or implied (suggested through behavior or circumstances). For instance, a “Welcome” sign at the entrance of a store implies consent for customers to enter during business hours.
  2. Conditional Consent: Sometimes, consent is granted conditionally, often based on specific behaviors or actions. For example, you may be allowed to enter a nightclub on the condition that you don’t cause any disturbances.
  3. Revocation of Consent: Consent can also be revoked at any time. If you’re asked to leave a property after initially receiving consent to be there, failing to leave may result in trespassing charges.
  4. Limited Scope: Consent may be limited to specific areas of a property or for specific time periods. For example, being invited into someone’s living room doesn’t grant you access to their bedroom.
  5. Legally Incapable: In some cases, an individual may not be in a legal position to give consent. This can include minors, individuals under the influence of substances, or individuals with certain mental disabilities.
  6. Fraudulent Consent: Consent obtained through deceit or false pretenses is generally not considered valid in a court of law.
  7. State Laws: The legal understanding and implications of “consent” can also vary by jurisdiction. Some states have more stringent requirements for what constitutes valid consent.

Motion to Suppress:

“Mistake of Fact” is a legal defense that contends the defendant had a genuine, but incorrect, belief or understanding about a particular fact or set of circumstances. This mistaken belief then led to actions that might otherwise be considered illegal. The defense aims to negate the “mens rea,” or criminal intent, that is often required to convict someone of a crime. Here are some key aspects of this defense:

  1. Negating Criminal Intent: The essence of “Mistake of Fact” is that the defendant did not possess the criminal intent necessary for conviction because they acted based on incorrect information. This could potentially absolve them from legal culpability.
  2. Reasonable Mistake: Generally, the mistake must be reasonable for the defense to be viable. In other words, an average person in the defendant’s situation would have also misunderstood the facts.
  3. Specific vs. General Intent: The effectiveness of a “Mistake of Fact” defense may vary depending on whether the crime charged is a specific intent crime or a general intent crime. For specific intent crimes, which require proof that the defendant intended to achieve some additional outcome (e.g., theft after breaking into a house), the defense is generally more effective.
  4. Limited Applicability: It’s important to note that this defense isn’t universally applicable. Some laws make certain actions illegal “strict liability” offenses, meaning intent does not matter.
  5. Example in Burglary: In the context of burglary, a “Mistake of Fact” defense could be used if, for instance, the defendant broke into what they genuinely—and reasonably—believed was their own home. In this situation, the defendant may argue that they had no intent to commit a crime and that their actions were based on a mistaken understanding.
  6. Evidential Burden: While the burden of proof generally lies with the prosecution, the defendant may need to produce some evidence to substantiate a claim of “Mistake of Fact.” This doesn’t necessarily shift the burden of proof but does require some foundational evidence to support the claim.
  7. Legal Advice: If you believe that a “Mistake of Fact” applies to your case, it is imperative to consult an experienced attorney to guide you through the complexities of the law. A well-argued “Mistake of Fact” defense could lead to a reduction in charges, or even complete dismissal.

This legal maneuver seeks to exclude any evidence obtained through unconstitutional methods, therefore weakening the prosecution’s case.

Alibi Defense:

The “Alibi Defense” is a type of defense strategy used in criminal cases where the defendant aims to prove that they were somewhere else when the alleged crime took place, making it impossible for them to have committed the offense. Here are some key elements of the alibi defense:

  1. Meaning of Alibi: The word ‘alibi’ is Latin for “elsewhere,” fittingly describing the essence of this defense. The accused provides evidence that they were at a different location at the time of the crime and thus could not have committed it.
  2. Evidence Required: To effectively present an alibi, the defendant may produce various forms of evidence such as eyewitness testimonies, surveillance footage, receipts, or phone records that place them at a different location when the crime occurred.
  3. Timing: Timing is crucial when utilizing an alibi defense. The defense must account for the window of time during which the crime was committed and convincingly demonstrate that the defendant was elsewhere.
  4. Documentation: Physical or digital records, such as timestamps on photographs, GPS data, or clock-in/clock-out times at work, can offer robust support for an alibi defense.
  5. Credibility of Witnesses: Often, an alibi relies heavily on testimonies from witnesses who can vouch for the defendant’s whereabouts. The credibility of these witnesses can significantly impact the effectiveness of the defense.
  6. Burden of Proof: Although the prosecution has the overall burden to prove guilt beyond a reasonable doubt, presenting an alibi defense does place a burden on the defense to produce credible evidence supporting the alibi.
  7. Pre-Trial Disclosure: In many jurisdictions, the defense is required to inform the prosecution in advance if they intend to use an alibi defense. This allows the prosecution time to investigate the alibi and prepare a rebuttal if possible.
  8. Counterarguments: The prosecution may attempt to disprove the alibi by questioning the reliability of the evidence, highlighting inconsistencies, or presenting evidence that still places the defendant at the scene of the crime.
  9. Implications: A strong alibi can completely exonerate the defendant, leading to a not guilty verdict. However, a weak or discredited alibi can harm the defendant’s credibility and overall case.
  10. Legal Assistance: Due to the complexities involved in presenting an effective alibi, consulting with an experienced criminal defense attorney is highly advisable. They can assist in gathering evidence, prepping witnesses, and presenting the alibi in the most compelling manner.

Providing evidence that the defendant was elsewhere when the alleged crime took place can lead to a dismissal of charges.

Frequently Asked Questions

What’s the difference between Burglary of a Dwelling and Trespass in a Structure or Conveyance?

In a burglary charge, there’s an implied intent to commit a crime once inside the dwelling, while trespassing is simply entering or remaining in a property without the owner’s consent. Trespassing charges can result if the intent to commit a crime inside the dwelling is absent or unproven.

Can charges be brought against me if I entered an unoccupied dwelling with no intention of theft or damage?

Yes, you can still face burglary charges even if the dwelling was unoccupied at the time of entry or no theft or damage occurred. The critical aspect of burglary charges is the “intent” to commit an offense, not the actual commission of the offense.

Are the penalties for a burglary offense more severe if a weapon was used?

Yes, the use of a weapon or explosive during the burglary can enhance the offense to a first-degree felony, leading to harsher penalties, which may include up to 30 years in prison or probation and a $10,000 fine.

What if the defendant was unaware that the dwelling was not open to the public?

If the defendant can reasonably prove that they believed the dwelling was open to the public, or that they were licensed or invited to enter or remain, it could form a valid defense. This falls under “Mistake of Fact.”

What’s the process if I believe the police obtained evidence against me in violation of my constitutional rights?

If you believe your constitutional rights were violated during the evidence collection, an experienced criminal lawyer from Leppard Law Firm can file a motion to suppress that evidence. If successful, the court may disallow the evidence obtained through the violation, potentially weakening the prosecution’s case.

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