Burglary Under FSS 810.02: Degrees, Penalties, and Enhancements

Burglary penalties in Florida run from up to five years in prison for the lowest-level offense to life imprisonment for the most serious, with the degree set by the type of place entered, whether anyone was inside, and what the accused did while there. Every burglary in Florida is a felony. There is no misdemeanor version.

The Three Degrees and Maximum Penalties

Florida’s burglary statute, section 810.02, sorts the offense into three felony degrees. Each degree carries a statutory maximum sentence and fine set by Florida’s general penalty laws.

First-degree felony burglary: Up to life in prison and a fine of up to $10,000. The burglary statute specifically authorizes life imprisonment, which overrides the 30-year cap that normally applies to first-degree felonies.¹²
Second-degree felony burglary: Up to 15 years in prison and a fine of up to $10,000.¹²
Third-degree felony burglary: Up to 5 years in prison and a fine of up to $5,000.¹²

Those are the ceilings. Where any individual case lands depends on which aggravators the state can prove and what the sentencing scoresheet produces.

What Pushes a Burglary to First-Degree

A burglary becomes a first-degree felony, with life exposure, when any one of the following happens during the offense:³

The accused commits an assault or battery on anyone inside.
The accused is armed with, or becomes armed with, a dangerous weapon or explosives while inside the dwelling, structure, or conveyance.
The accused uses a vehicle as a tool to help commit the burglary (not just as a getaway car) and damages the dwelling or structure.
The accused causes damage of more than $1,000 to the dwelling or structure or to property inside it.

The property-damage trigger catches people off guard. No weapon and no victim are required. Breaking enough fixtures, doors, or merchandise during the burglary to cross $1,000 is enough on its own to turn a second-degree charge into a first-degree felony. The vehicle-as-a-tool provision targets smash-and-grabs where someone rams a storefront to get in; driving away in the same car afterward does not qualify.

What Makes It Second-Degree

Without any first-degree aggravators, burglary is a second-degree felony if the accused enters or remains in any of these:³

Any dwelling, whether anyone is home or not.
An occupied structure (someone else is inside at the time).
An occupied conveyance.
An authorized emergency vehicle.
A structure or conveyance where the intent is to steal a controlled substance.

The headline rule: every dwelling burglary is at least a second-degree felony. An empty vacation home with no one around and nothing taken still exposes the accused to up to 15 years in prison, because Florida treats unauthorized entry of a home with criminal intent as inherently serious. The presence of another person inside a non-dwelling structure or a vehicle also lifts the charge from third- to second-degree.

When Burglary Is Third-Degree

Third-degree felony burglary is the floor. It applies only when no aggravators are present and the accused enters or remains in an unoccupied structure or an unoccupied conveyance.³ A closed, empty warehouse or an unattended parked car fits here. Dwellings never do, even when empty.

How Actual Sentences Are Calculated

The statutory maximums are rarely the whole story. Florida sentences felonies through the Criminal Punishment Code, a points-based scoresheet that produces a lowest permissible sentence for each case. Points are assigned for the severity of the primary offense, any additional charges, the defendant’s prior record, and whether anyone was injured.⁴ A judge may sentence anywhere from that minimum up to the statutory cap. Going below the minimum requires written justification.

In practice, a defendant with a lengthy record or several concurrent charges can score high enough that prison is effectively mandatory, even on a third-degree burglary. A first-time defendant whose score falls below the prison threshold may be eligible for a non-prison disposition on the same charge.

What Counts as Burglary

Burglary in Florida means entering, or remaining in, a dwelling, structure, or conveyance without authorization and with the intent to commit any offense inside. It also covers staying hidden after lawful entry, or remaining after permission is withdrawn, when the intent is to commit a crime or a forcible felony.³ A “forcible felony” includes robbery, arson, kidnapping, sexual battery, and aggravated assault, among others.⁵

Two misconceptions are worth clearing up. Burglary does not require intent to steal; the intended offense can be any crime, including assault, vandalism, or drug activity. And no force is needed to get in. Walking through an unlocked door counts the same as prying open a window. Premises open to the public at the time of entry are excepted, so entering an open retail store during business hours is not burglary even if the person planned to shoplift.³

Dwelling, Structure, or Conveyance

Because the category of location drives the degree, these definitions do real work:⁶

Dwelling: Any building or conveyance, permanent or temporary, mobile or stationary, that has a roof and is designed for people to sleep in overnight. Attached porches and the surrounding curtilage (the yard and outbuildings used for everyday domestic purposes) are included.
Structure: Any building of any kind with a roof, plus its curtilage. Warehouses, storage sheds, retail stores, and partially built houses that already have a roof all qualify.
Conveyance: Any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car. “Entering” a conveyance includes taking apart any portion of it, so removing a car door panel to reach inside counts as entry.

Classification can shift with context. A detached garage that is part of a home’s curtilage can be treated as part of the dwelling, while the same building on a commercial lot is a structure. That one distinction is often the difference between a second-degree and a third-degree charge.

Enhanced Penalties During a State of Emergency

During a governor-declared state of emergency, the statutory definitions of dwelling, structure, and conveyance expand to include whatever remains of the building or vehicle at its original location, even if the roof or walls are gone.⁶ That closes the loophole of arguing a hurricane-damaged home is no longer a “structure.”

Theft committed during a declared emergency faces its own enhancement. When emergency conditions facilitate the theft, the felony degree of the theft is reclassified one level higher than it would normally be, and the accused cannot be released from custody before a first appearance.⁷ A single incident during a state of emergency can therefore carry an enhanced burglary charge and an enhanced theft charge at the same time.

Deadline to File Charges

Florida gives prosecutors a limited window to bring burglary charges. For first-degree felony burglary, the state must begin prosecution within four years of the offense. For second-degree and third-degree felony burglary, the deadline is three years.⁸ The clock generally starts on the date of the offense, though it can be paused in certain situations, such as when a suspect flees the state.

1
Justia Law. Florida Code 775.082 – Penalties and Applicability of Sentencing Structures
2
The Florida Legislature. Florida Code 775.083 – Fines
3
Florida Senate. Florida Code 810.02 – Burglary
4
Florida Senate. Florida Code 921.0024 – Criminal Punishment Code Worksheet Computations and Scoresheets
5
The Florida Legislature. Florida Code 776.08 – Forcible Felony
6
The Florida Legislature. Florida Code 810.011 – Definitions
7
Florida Senate. Florida Code 812.014 – Theft
8
The Florida Legislature. Florida Code 775.15 – Time Limitations