Charged With Burglary
in Orlando?
Felony charges can escalate quickly based on circumstances.
The earlier you act, the more options you may have.
Request a confidential consultation.
Every burglary charge in Florida is a felony. There is no such thing as a misdemeanor burglary in this state. Under Florida Statute § 810.02, burglary ranges from a third-degree felony carrying up to 5 years in prison to a first-degree felony punishable by life imprisonment — and the line between those classifications often comes down to factual details that prosecutors interpret aggressively.
What makes burglary charges particularly dangerous is that the state does not need to prove you actually committed a crime inside the property. It only needs to prove you entered or remained with the intent to commit one. That intent element is where most burglary defenses are built, and it is where an experienced criminal defense attorney can make the biggest difference.
Attorney James P. Kelly defends burglary cases throughout Orlando and Orange County. When you call, you speak directly with your attorney.
Florida’s burglary statute is broader than most people expect. It is not limited to breaking into someone’s home in the middle of the night. Under § 810.02, burglary occurs in two ways:
Entry without permission. Entering a dwelling, structure, or conveyance with the intent to commit an offense inside, when the premises are not open to the public and the defendant was not licensed or invited to enter.
Remaining after permission is withdrawn. Even if you initially entered lawfully — as a guest, customer, or invited person — you commit burglary if you remain in the dwelling, structure, or conveyance under any of these circumstances:
No forced entry is required. No “breaking” is necessary. Walking through an unlocked door, staying in a store after it closes, or remaining in someone’s home after being told to leave can all form the basis of a burglary charge if the state can prove criminal intent.
The statute applies to three categories of locations:
The severity of a burglary charge in Florida depends on the location, whether anyone was present, and whether the defendant became armed or committed violence during the offense.
This is the least severe classification, but it is still a felony. Third-degree burglary applies when:
No assault was committed, and the defendant was not armed.
Penalties: Up to 5 years in Florida state prison, 5 years of probation, and a $5,000 fine.
Second-degree burglary covers more serious scenarios:
Penalties: Up to 15 years in prison, 15 years of probation, and a $10,000 fine.
First-degree burglary is among the most severely punished non-homicide offenses in Florida. It applies when, during the course of the burglary, the defendant:
Penalties: Up to life in prison, plus fines up to $10,000.
If a firearm was involved, the 10-20-Life law (§ 775.087) can impose additional mandatory minimum sentences on top of the burglary penalties.
Burglary cases in Orlando span a wide range of factual situations, many of which do not match the stereotypical image of a masked intruder. Some of the most common scenarios that result in burglary charges in Orange County include:
Burglary of a dwelling. Entering someone’s home — even through an unlocked door or open window — with the intent to steal property or commit another crime. This is automatically a second-degree felony regardless of whether anyone was home.
Burglary of a vehicle. Entering a locked or unlocked car, truck, or other conveyance with the intent to steal something inside. This is one of the most frequently charged property crimes in Orange County, often arising from overnight thefts in residential neighborhoods and parking lots near tourist areas.
Commercial burglary. Entering a business after hours with the intent to commit theft. If the business was unoccupied, this is a third-degree felony. If someone was inside — a night janitor, a security guard, anyone — it becomes a second-degree felony.
Burglary with battery (“burg batt”). If any physical contact occurs during a burglary — even minimal contact like pushing past someone while fleeing — the charge can be elevated to first-degree burglary. This is one of the most aggressively prosecuted charges in Florida and carries a life sentence.
Remaining after permission is withdrawn. Shoplifting incidents that escalate, disputes between former roommates or romantic partners, and confrontations with property owners can all be charged as burglary if the state argues the defendant remained in a location after being told to leave with the intent to commit an offense.
The prosecution in a burglary case must prove every element beyond a reasonable doubt. The two most commonly contested elements are unauthorized entry and criminal intent at the time of entry. Both present real opportunities for defense.
Challenging intent. This is the foundation of most burglary defenses. The state must prove you had the intent to commit a crime at the moment you entered or remained in the location. If you entered without criminal intent and only formed the intent later, the burglary charge does not apply — though other charges (theft, trespassing) might. Intent is an internal mental state that the state must prove through circumstantial evidence, and circumstantial evidence can be interpreted multiple ways.
Consent or invitation to enter. If you had permission to be on the premises — whether express or implied — the “unauthorized entry” element may not be satisfied. This defense arises frequently in cases involving friends, family members, romantic partners, business associates, and former cohabitants. The question of whether and when permission was withdrawn is often hotly disputed.
Mistaken identity. Many burglary arrests happen after the fact, not at the scene. The police identify suspects through surveillance footage, fingerprints, DNA, or witness descriptions — and each of these methods has well-documented limitations. Surveillance footage is often grainy. Fingerprints can be planted or transferred innocently. Eyewitness identifications are notoriously unreliable, especially across racial lines.
Challenging the definition of “dwelling,” “structure,” or “conveyance.” The state must prove the location qualifies under the statute’s definitions. Abandoned buildings, structures without roofs, open-air areas, and certain temporary structures may not meet the statutory definition.
Open to the public. The statute explicitly excludes premises that are open to the public at the time of entry. If you entered a business during its operating hours, the burglary charge may not hold even if you intended to commit a crime inside — the appropriate charge would be theft, not burglary.
Lack of forced entry does not equal consent. This point cuts both ways. The state does not need to show forced entry to prove burglary, but the absence of any evidence of forced entry can support the defense argument that the defendant was invited or had implied permission to be present.
These three charges are frequently confused, and the distinctions carry enormous consequences.
Burglary (§ 810.02) requires entry or remaining with intent to commit a crime. Always a felony.
Trespassing (§ 810.08) is unauthorized entry or remaining in a structure or conveyance without intent to commit a crime inside. A second-degree misdemeanor for structures and conveyances.
Theft (§ 812.014) is the taking of someone else’s property with the intent to permanently or temporarily deprive them of it. Can be a misdemeanor or felony depending on the value.
The practical difference is massive. A person who enters an unlocked car and steals a phone could be charged with burglary of a conveyance (felony) or simply theft (potentially a misdemeanor), depending on how aggressively the prosecutor approaches the case. Having an attorney who understands how to argue for the appropriate charge — rather than the most severe charge — can be the difference between a felony record and a misdemeanor.
Related: Theft Crimes Defense | Robbery Defense | Assault & Battery
Burglary is one of the most overcharged offenses in Florida. The statute is written so broadly that prosecutors can file burglary charges in situations that most people would describe as trespassing or shoplifting. The difference between a life felony and a misdemeanor can hinge on whether the state can prove criminal intent at the moment of entry — and that is a question your defense attorney can fight.
When you call The Law Office of James P. Kelly, you speak directly with attorney James P. Kelly. In burglary cases, the details of how you came to be in the location, whether you had permission, what you were doing there, and what happened before and after entry are the building blocks of your defense. Those facts need to go straight to your lawyer, not through a chain of office staff.
James P. Kelly defends burglary cases in the Orange County Courthouse, the Ninth Judicial Circuit, and courts throughout Central Florida. The firm serves English and Spanish-speaking clients — hablamos español.
The most effective outcomes in burglary cases often come through pre-trial motions and negotiations, not at trial.
Reduction to trespassing. If the state’s evidence on criminal intent is weak, the prosecution may agree to reduce the charge to trespassing — a misdemeanor with dramatically lower consequences. This is often the most realistic and impactful outcome to pursue.
Reduction to theft. In cases where the evidence clearly shows a theft occurred but the burglary elements are questionable, reducing the charge to the appropriate theft offense avoids a felony conviction when the value of the property involved would otherwise support a misdemeanor.
Motion to suppress evidence. If the police conducted an illegal search, obtained evidence without a warrant in a non-exigent situation, or violated your constitutional rights during the investigation, the evidence obtained may be suppressed — which can gut the state’s case.
Pre-trial diversion. First-time offenders charged with third-degree burglary may be eligible for diversion programs offered through the State Attorney’s Office in the Ninth Judicial Circuit. Successful completion results in charges being dropped.
Case dismissal. If the state cannot prove intent, if the key identification evidence is unreliable, or if the location does not meet the statutory definitions, the case may be dismissed.
The information on this page is provided for general informational purposes and does not constitute legal advice. Every criminal case involves unique facts and circumstances that affect the outcome. Contacting The Law Office of James P. Kelly, P.A. does not create an attorney-client relationship. Past results do not guarantee future outcomes.
Yes. Every degree of burglary in Florida is classified as a felony. Third-degree burglary carries up to 5 years in prison, second-degree up to 15 years, and first-degree up to life. There is no misdemeanor burglary in Florida.
Florida law does not have a separate “breaking and entering” statute. Burglary under § 810.02 does not require any forced entry at all. Walking through an unlocked door with the intent to commit a crime inside is legally sufficient to support a burglary charge.
Yes. Depending on the evidence, burglary charges can potentially be reduced to trespassing (a misdemeanor), theft, or a lower degree of burglary. The feasibility of a charge reduction depends on the strength of the state’s evidence regarding intent and the specific circumstances of the case.
Burglary with battery occurs when a person commits an assault or battery on anyone during the course of a burglary. It is a first-degree felony punishable by up to life in prison. This charge can be triggered by even minimal physical contact — pushing past someone while fleeing, for example.
No. Burglary is an intent-based crime. The state only needs to prove that you entered or remained with the intent to commit an offense inside. Whether you actually completed that offense is irrelevant to the burglary charge itself. You can be convicted of burglary even if nothing was taken.
A burglary conviction cannot be expunged or sealed. However, if the charges are reduced to a non-burglary offense, dismissed, or result in an acquittal, you may be eligible for expungement or sealing of your arrest record under § 943.0585.
