Tampa Burglary Charges Defense Lawyer

Brad Post

Michael D. Kenny, Attorney

Brad Post: All right. Welcome to floridadefense.com podcast. We are speaking to Tampa burglary charges defense lawyer Mike Kenny, at the Bauer, Crider, and Parry, law firm in Tampa, Florida.

Michael D. Kenny, Attorney: Morning.

B: Mike, we’ve been speaking on theft crimes. Last edition we talked about robbery charges. Today, we’re going to be talking about burglary, which are two different areas. Correct?

M: That’s right. It’s kind of funny, people use those terms, you hear people discuss them. I think lay folks might use the term robbery when they say, “My house was robbed.” But there’s specific terms, these are like “terms of art”, in the legal world. A burglary specifically means a theft from a particular location. And there's certain elements that have to be established in order for something to qualify as a burglary. Whereas robbery is like what we talked about before. Robbery means that the way the item was taken. Whether the person used some kind of force to take it, some threat of force, or that the victim at some point became aware during the course of the taking that an item is being stolen from them.

They're all theft related, but a burglary specifically means the entering, or remaining, in a dwelling (which is basically a home), structure (which is something that is not a home, but like a business), or conveyance (which is an automobile or anything that basically transports folks) with the intent to commit an offense therein. Then there is an exception: unless the premises that are at the time open to the public, or the defendant is licensed, or invited to enter. So, that’s your basic burglary: a person enters a home, with the intent to commit a crime inside, and that essentially is a burglary. And it doesn't have to be that they have to steal something. In the vast majority of burglary crimes, that's what happens - a person breaks into a home and steal some items (a television, property, medicine) any one of those items. And depending upon what type of place of that they enter determines the severity of the crime. Generally speaking, a burglary of a conveyance, like a car, is a third degree burglary. A person walking down the street, they’re an opportunist, and they check the door handles to find out what cars will open in the middle of the night. And they find one that opens. Once they reach inside and take whatever items they can get, that’s a burglary of the third degree. That’s a burglary of a conveyance.

A person goes to a home, enters the home, and walks out with a television set. That’s a burglary of the second degree. Punishable by up to 15 years in prison. A person who gets convicted for the first-time burglary, even if they have no prior criminal history, scores on the score sheets that we use in Florida, a minimum of 21 months in the Department of Corrections. So, almost 2 years, even with no prior criminal history, and that doesn't change unless there's some type of reduction to the charge, or some negotiation in a plea disposition. The judge really doesn't have any discretion.

And then there's the third degree burglary that comes up businesses. A person breaks into a store that may be closed at night, and walks out with something. So, that's the basic definition of a burglary: that you enter with the intent to commit an offense therein. So why that matter, the intent to commit an offense therein? That’s pretty important because that's what separates a felony in a lot of cases from a misdemeanor. So say a person, which I’ve seen as a prosecutor, a lot of times you might have some homes that were abandoned for a while, and maybe there's some homeless individuals who ended up spending the night in the home. And after spending the night in the home, maybe they damaged some of the property. Well, in that case, probably most the time the person when they entered the home didn't have an intent to commit an offense therein. Just walking into a home and taking a nap, or going to sleep, is not really anything other than a trespass. Which is a misdemeanor. It doesn't carry any kind of prison sentence whatsoever. If the person enters the home, and end up stealing something, or enters the home and end up causing some type of criminal mischief or damage, courts have decided that you can use that the act that is committed to prove that that was the initial intent upon entering.

There's another way to prove intent, and they say that you don’t have to prove intent to commit offense therein if the person is entering the home surreptitiously (meaning entering the home under cover of darkness, maybe disguised the middle of the night, sneaking in). If that's able to be established you don't have to prove what the person’s intent was. But in all burglary cases, a basic element the prosecutor has to prove to the jury, is that the time of the entry this person intended to commit a crime.

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