Burglary Under Florida Statute 810.02: Felony Degrees and Penalties

Burglary under Florida Statute 810.02 penalties fall into three felony tiers: a third-degree felony carries up to 5 years in prison and a $5,000 fine, a second-degree felony carries up to 15 years and a $10,000 fine, and a first-degree felony carries up to life in prison and a $10,000 fine. Which tier applies depends on where the burglary happened, whether anyone was inside, whether a weapon was involved, and whether anyone was hurt or significant property damage occurred. Mandatory minimums, repeat-offender enhancements, and emergency-period bump-ups can push the actual sentence well above the baseline maximums.

Third-Degree Felony Burglary

This is the baseline charge under 810.02. It applies when someone enters or remains in an unoccupied structure or an unoccupied conveyance, without a weapon, and without committing an assault or battery.¹ Breaking into a closed warehouse at night or entering an empty parked car are typical examples.

The maximum penalty is 5 years in prison and a fine of up to $5,000.²³ If anyone turns out to have been inside the structure or vehicle at the time, the charge moves up to second degree.

Second-Degree Felony Burglary

Second-degree burglary carries up to 15 years in prison and a fine of up to $10,000.²³ It applies when no weapon is used and no assault or battery occurs, but any of these are true:

The target is a dwelling, whether anyone is home or not. Florida treats homes more seriously because of the risk to residents.
The target is a structure with someone inside at the time.
The target is a conveyance with someone in it.
The target is an authorized emergency vehicle, regardless of occupancy.
The burglary was committed to steal a controlled substance, even from an unoccupied structure or conveyance.¹

The dwelling rule catches a lot of people. Entering an empty vacation home that no one has visited in months is still a second-degree felony. Occupancy only matters for non-dwelling structures and for conveyances.

First-Degree Felony Burglary

First-degree burglary carries up to life in prison and a fine of up to $10,000. The burglary statute specifically authorizes a life sentence, which overrides the 30-year cap that applies to most first-degree felonies.¹³ It applies when any of these aggravators are present during the burglary:

The offender commits an assault or battery on anyone during the burglary.
The offender is armed with, or becomes armed inside with, a dangerous weapon or explosives.
The offender uses a motor vehicle to ram or damage the dwelling or structure as part of the burglary (not merely to flee).
The offender causes more than $1,000 in damage to the dwelling, structure, or property inside.¹

The damage threshold trips up defendants who assume first-degree charges require violence. Kicking in a door, breaking windows, and tearing up interior walls during a home break-in can easily push the total past $1,000 and turn a second-degree case into a first-degree case.

How Scoresheets Shape the Actual Sentence

The numbers above are maximums. The sentence a judge can actually impose runs through Florida’s Criminal Punishment Code, which assigns each form of burglary an offense severity level feeding into a sentencing scoresheet:

Level 4: third-degree burglary of an unoccupied structure or conveyance
Level 6: second-degree burglary of an occupied structure
Level 7: second-degree burglary of a dwelling (occupied or not) and burglary of an occupied conveyance
Level 8: all first-degree burglary charges⁴

Higher severity levels produce higher minimum scoresheet points, which translate into longer recommended prison terms. A Level 7 dwelling burglary scores substantially higher than a Level 4 unoccupied-structure burglary even for a defendant with no prior record.

Mandatory Minimums Under 10-20-Life

Burglary is one of the offenses covered by Florida’s mandatory firearm minimums. If the offender possesses a firearm or destructive device during the burglary, the court must impose a minimum of 10 years in prison. If the firearm is discharged, the minimum jumps to 20 years. If someone suffers death or great bodily harm from the discharge, the minimum is 25 years to life.⁵

Burglary of a conveyance is treated differently. Possessing a firearm during a vehicle burglary carries a 3-year mandatory minimum rather than 10, though the 20-year and 25-to-life floors still apply if the firearm is discharged.⁵

Repeat-Offender Enhancements

Habitual Felony Offender

A defendant with two or more prior felony convictions, where the current burglary was committed within five years of the last conviction or release from prison, can be sentenced as a habitual felony offender. The enhanced maximums are up to life for a first-degree felony, up to 30 years for a second-degree felony, and up to 10 years for a third-degree felony.⁶ For second- and third-degree burglary, that effectively doubles the normal maximum.

Prison Releasee Reoffender

This enhancement is harsher. A defendant who commits armed burglary, burglary of a dwelling, or burglary of an occupied structure within three years of release from prison faces the mandatory maximum: life for a life felony, 30 years for a first-degree felony, 15 years for a second-degree felony, and 5 years for a third-degree felony. There is no parole, early release, or gain time; every day of the sentence must be served.⁷

Burglary During a State of Emergency

A burglary committed during a governor-declared state of emergency, when the conditions of the emergency facilitate the crime, is automatically bumped up one felony degree. A third-degree burglary becomes second degree; a second-degree burglary becomes first degree. The offense is also ranked one level higher on the severity chart for scoresheet purposes, and anyone arrested for burglary during a state of emergency cannot be released from custody until their first appearance before a judge.⁸ The same bump applies to burglary committed during a riot.

The definitions of “dwelling” and “structure” also expand during a declared emergency. A hurricane-damaged home with no roof still counts as a dwelling for burglary purposes, a provision aimed at post-disaster looting.⁹

Attempted Burglary

You can be prosecuted even if you never get inside. Attempted burglary of a second- or third-degree felony is charged as a third-degree felony, carrying up to 5 years in prison. Attempted first-degree burglary is a second-degree felony.¹⁰ Prying open a window or picking a lock can be enough if the state can show intent to enter and commit a crime inside. Florida’s offense severity ranking chart lists attempted burglary alongside completed burglary at the same severity levels.⁴

Consequences That Outlast the Sentence

The penalties under 810.02 are only the start. A burglary conviction leaves a permanent felony record with its own statutory consequences.

Florida law prohibits anyone convicted of a felony from owning or possessing any firearm, ammunition, or electric weapon. Violating this ban is itself a second-degree felony punishable by up to 15 years in prison, and the prohibition is permanent unless civil rights are restored through clemency.¹¹

Voting rights are suspended until every part of the sentence is complete, including prison, probation, parole, and full payment of all fines, fees, costs, and restitution. Only then can the person register again. If the financial obligations cannot be paid, voting rights remain suspended indefinitely unless the State Clemency Board restores them.¹²

Expungement is generally unavailable. Florida does not allow expungement when the defendant has been adjudicated guilty, and burglary always produces a felony conviction on a guilty finding.¹³ The only paths to clearing the record are a withhold of adjudication (where the judge does not formally enter a conviction) or a pardon from the clemency board. That makes the difference between adjudication and a withhold at sentencing one of the most consequential outcomes in a burglary case.

Non-citizens face additional exposure. Federal immigration law treats many felonies as grounds for removal, and a burglary conviction can trigger deportation or inadmissibility regardless of how long the person has lived in the United States.

1
Florida Senate. Florida Code 810.02 – Burglary
2
Justia Law. Florida Code 775.082
3
Justia Law. Florida Code 775.083 – Fines
4
Online Sunshine. Florida Code 921.0022 – Criminal Punishment Code, Offense Severity Ranking Chart
5
Florida Senate. Florida Code 775.087 – Possession or Use of Weapon
6
Florida Senate. Florida Code 775.084
7
Online Sunshine. Florida Code 775.082
8
Online Sunshine. Florida Code 810.02 – Burglary
9
Justia Law. Florida Code 810.011 – Definitions
10
Online Sunshine. Florida Code 777.04 – Attempts, Solicitation, and Conspiracy
11
Online Sunshine. Florida Code 790.23
12
Florida Department of State. Felon Voting Rights
13
Justia Law. Florida Code 943.0585