Attempted Burglary in Florida: Penalties, Enhancements, and Defenses

Attempted burglary in Florida is a felony in nearly every situation, most often charged as a third-degree felony carrying up to five years in prison, and rising to a second-degree felony with up to 15 years when weapons, an assault, or serious property damage were involved. There is no standalone attempted burglary statute. Prosecutors combine the burglary law¹ with the general criminal attempt statute² to reach the charge.

How the Charge Is Classified

The attempt statute generally drops a completed offense down one degree. So attempting a first-degree felony burglary is a second-degree felony, and attempting a second-degree felony burglary is a third-degree felony. Under the normal rule, attempting a third-degree felony would fall to a first-degree misdemeanor. Florida wrote a specific exception for burglary: attempted burglary that would otherwise become a misdemeanor stays a third-degree felony.² Every attempted burglary in Florida is at minimum a felony.

What the completed burglary would have looked like drives everything else:

A completed burglary is a first-degree felony if the offender assaulted or battered someone, became armed inside with a weapon or explosive, used a vehicle to damage the building, or caused more than $1,000 in property damage. Attempting this is a second-degree felony.¹
A completed burglary is a second-degree felony when the target was a dwelling (occupied or not), an occupied structure, an occupied vehicle, an emergency vehicle, or a location where the intended crime was theft of a controlled substance, with no first-degree aggravators. Attempting this is a third-degree felony.¹
A completed burglary is a third-degree felony when the target was an unoccupied non-residential structure or an unoccupied vehicle with no aggravators. Attempting this is also a third-degree felony because of the carve-out.¹

Most attempted burglary charges land as third-degree felonies. The charge climbs to a second-degree felony only when the underlying facts would have made the completed burglary a first-degree felony.

Penalties You Actually Face

Third-Degree Felony

Up to five years in prison, up to five years of probation, and a fine of up to $5,000.³⁴ This is the exposure for attempted burglary of a dwelling without aggravators, of an occupied structure, or of an unoccupied structure or vehicle.

A first-time defendant with no prior record can score low enough on Florida’s sentencing scoresheet for a non-prison outcome such as probation or community control. Prior convictions raise the score and the odds of actual prison time.

Second-Degree Felony

Up to 15 years in prison, up to 15 years of probation, and a fine of up to $10,000.³⁴ This applies when the attempted burglary involved weapons, an assault or battery, vehicle damage to a building, or more than $1,000 in property damage.

Enhancements That Can Push the Sentence Higher

Several statutes stack extra time on top of the base penalties, and they are where attempted burglary cases turn severe.

Habitual Felony Offender

A defendant with two or more prior felony convictions can be classified as a habitual felony offender if the current offense was committed within five years of the last conviction or release from prison. Under this enhancement, a third-degree felony attempted burglary can carry up to 10 years instead of five, and a second-degree felony attempted burglary can carry up to 30 years instead of 15.⁵

Prison Releasee Reoffender

Florida’s Prison Releasee Reoffender law applies to anyone who commits or attempts a qualifying offense within three years of release from prison. Armed burglary and burglary of a dwelling or occupied structure are on the list. A defendant sentenced under this provision must serve the statutory maximum with no parole, no early release, and no gain time. Five full years for a third-degree felony, 15 full years for a second-degree felony.³ Attempted burglary of an unoccupied non-residential structure is not on the qualifying list.

10-20-Life

If a firearm was involved, Florida’s 10-20-Life law imposes mandatory minimums. Burglary and attempted burglary are qualifying offenses. Possessing a firearm during the offense triggers a 10-year mandatory minimum. Discharging it raises the floor to 20 years. If someone was killed or suffered great bodily harm from the discharge, the mandatory minimum is 25 years to life.⁶ For burglary of a conveyance, the mandatory minimum for firearm possession is three years rather than ten.

Possession of Burglary Tools

Being caught with tools intended for use in a burglary is a separate third-degree felony, punishable by up to five years in prison and a $5,000 fine.⁷ This charge stacks on top of the attempted burglary charge, potentially doubling total exposure.

What the Prosecution Has to Prove

Because the crime is never completed, these cases lean on circumstantial evidence, and the line between preparation and an actual attempt is where contested cases are won or lost.

Intent

The prosecution must show you intended to enter a building, dwelling, or vehicle to commit a crime inside. Intent cannot be presumed from proximity alone. The Florida Supreme Court has confirmed the charging document must allege intent to commit an offense, though it does not need to specify which one.⁸ Prosecutors typically build intent from tools like pry bars or lock picks, prior statements about targeting a property, surveillance footage showing someone casing a building, or gloves and a mask at a commercial site late at night.

An Overt Act Beyond Preparation

Planning is not enough. There must be a concrete action moving the crime toward completion. Florida’s Supreme Court has defined the elements as intent plus “some overt act directed toward its commission.”⁹ Trying to pry open a door, cutting a window screen, manipulating a lock, or breaking a window all qualify. Buying tools or driving past a location repeatedly typically does not.

Failure From an External Cause

The prosecution must also show the crime went uncompleted because of something beyond your control, such as an alarm, a witness, or police arriving. A voluntary decision to stop is a separate matter, addressed by the abandonment defense below.²

Defenses That Fit These Cases

Lack of Intent

If the state cannot prove you intended to commit a crime inside, the charge fails. This works when there is a plausible reason for being near the property. Looking for a friend’s house, seeking shelter, approaching the wrong address. Courts have recognized that being near a building at an odd hour, or even acting strangely, does not by itself prove criminal intent.⁸

Insufficient Overt Act

Even if intent existed, the defense can argue you never crossed the line from preparation to attempt. Buying a crowbar, driving past a building, or researching a property’s layout are preparatory. Courts have dismissed cases where the evidence showed suspicion without physical contact with a door, window, or lock.⁹

Voluntary Abandonment

Florida law provides a defense for defendants who voluntarily gave up before completing the offense. The word “voluntary” does the work here. Stopping because a dog started barking, a light came on, or a patrol car went by is not voluntary abandonment. The defense requires a genuine change of heart unrelated to the difficulty of the crime or the risk of getting caught, and the defendant bears the burden of proving it by a preponderance of the evidence.²

Mistaken Identity

Attempted burglary suspects are often described by clothing, build, or a fleeting glimpse in poor lighting. Defense attorneys challenge these identifications through alibi evidence, inconsistencies between the witness description and the defendant’s appearance, or the lighting and distance conditions at the scene.

Suppression of Evidence

If law enforcement violated your rights during the investigation or arrest, key evidence can be excluded. An unlawful search of your car or person can suppress the tools or physical evidence found. A failure to give Miranda warnings before custodial interrogation can knock out any confessions or incriminating statements.¹⁰ Winning a suppression motion can gut the prosecution’s case when what remains is proximity and suspicion.

Youthful Offender Sentencing

Defendants who are 18 to 20 years old at sentencing may be eligible for Florida’s Youthful Offender program, which caps total incarceration and supervision at six years regardless of the felony degree. Attempted burglary qualifies because the program is available for most felonies other than capital and life offenses.¹¹ A judge sentencing under this program can impose county jail time of up to 364 days, a combination of incarceration and supervision, or commitment to the Department of Corrections for up to six years. It cannot be used if you were previously sentenced as a youthful offender. For eligible defendants, this can be the difference between a standard felony prison sentence and a shorter, rehabilitation-focused one.

Life After a Conviction

The sentence is not the whole picture. A felony conviction for attempted burglary permanently bars you from owning or possessing firearms, ammunition, or electric weapons in Florida, and violating that bar is itself a second-degree felony carrying up to 15 years.¹² Voting rights are automatically restored under Amendment 4 once all terms of the sentence, including probation, restitution, and outstanding fines and fees, are completed. Professional licensing in financial services, insurance, bail bonds, and other regulated industries can be affected for years. Florida’s Department of Financial Services treats burglary as a moral turpitude felony with a 15-year disqualification period from the date of final release from supervision, and background checks in healthcare, education, law enforcement, and security routinely surface felony convictions well beyond that.

1
Florida Senate. Florida Code 810.02 – Burglary
2
Florida Senate. Florida Code 777.04 – Attempts, Solicitation, and Conspiracy
3
Justia Law. Florida Code 775.082 – Penalties; Applicability of Sentencing Structures; Mandatory Minimum Sentences for Certain Reoffenders Previously Released from Prison
4
Florida Senate. Florida Code 775.083 – Fines
5
Florida Senate. Florida Code 775.084 – Violent Career Criminals; Habitual Felony Offenders and Habitual Violent Felony Offenders; Three-Time Violent Felony Offenders; Definitions; Procedure; Enhanced Penalties or Mandatory Minimum Prison Terms
6
Florida Senate. Florida Code 775.087 – Possession or Use of Weapon; Aggravated Battery; Felony Reclassification; Minimum Sentence
7
Florida Senate. Florida Code 810.06 – Possession of Burglary Tools
8
Justia. State v. Waters, 436 So 2d 66 – Florida Supreme Court Decisions
9
Justia. Jones v. State – Florida Supreme Court Decisions
10
Justia U.S. Supreme Court Center. Miranda v. Arizona, 384 US 436
11
Florida Senate. Florida Code 958.04 – Youthful Offenders; Disposition
12
Online Sunshine. Florida Code 790.23 – Felons and Delinquents; Possession of Firearms, Ammunition, or Electric Weapons or Devices Unlawful