Burglary vs. Theft in Florida: What to Know

August 26, 2025 Don Pumphrey, Jr. Criminal Defense, Theft/Property Crimes Social Share

In Florida, burglary and theft are two similar yet distinct offenses. Burglary involves unlawfully entering or remaining in a dwelling, structure or conveyance with the intent to commit an additional crime therein. Theft involves knowingly obtaining or using (or attempting to do so) the property of another with the intent to permanently or temporarily deprive them of it.

Though they are often confused, burglary and theft are entirely different crimes. This blog will outline the offenses of burglary (Fla. Stat. 810.02) and theft (Fla. Stat. 812.014) in Florida, as well as penalties and defenses to these charges.

For someone to be proven guilty of burglary in Florida, the State must establish all of the following beyond a reasonable doubt:

• The defendant knowingly and unlawfully entered or remained in a structure, conveyance or dwelling (this includes any body part or a tool the defendant is holding, such as a hammer)
• The defendant had the intent to commit a crime (e.g. theft, assault, vandalism) at the time of the entry or while unlawfully remaining in the dwelling

Note: A separate crime does not actually have to be completed within the structure, conveyance or dwelling for burglary to occur. As long as the intent exists to commit this separate offense while inside, burglary is committed. Drew v. State, 773 So.2d 46 (Fla. 2000)

Under Fla. Stat. 810.011, a structure, dwelling, and conveyance are defined as the following:

• Structure: A building of any kind (temporary or permanent) which has a roof over it, together with the enclosed space of ground and outbuildings immediately surrounding it (e.g. stores, sheds with roofs, warehouses)
• Dwelling: A building or conveyance of any kind, including any attached porch, which has a roof and is designed to be occupied by people lodging at night, whether currently occupied or not (e.g. home, mobile home, apartment)
• Conveyance: Any motor vehicle, ship, vessel, railroad vehicle, car, trailer, aircraft, or sleeping car (e.g. boats, planes, cars, trucks, motorcycles, RV if not used as a dwelling)

The penalties for burglary are very serious in Florida, and largely depend on the facts of the case. Under Florida law, the following penalties apply:

• Third-degree felony (up to 5 years in prison and a $5,000 fine): Entry into an unoccupied structure or conveyance without assault, battery, or weapons (but with intent to commit a separate crime)
• Second-degree felony (up to 15 years in prison and a $10,000 fine): Entry into a dwelling, occupied structure, occupied conveyance, or emergency vehicle without assault, battery, or weapons (but with the intent to commit a separate crime)
• First-degree felony punishable punishable by life: Burglary involving use of a vehicle (such as smashing through a store wall to burglarize it), or otherwise causing more than $1,000 in damage to property during the burglary
• First-degree felony punishable by life: Armed burglary or burglary with an assault and/or battery

Note: Armed burglary requires a weapon to be within the immediate physical reach of the defendant and an intent to use it during the offense. It may be acquired before or during the burglary (such as grabbing a gun that is sitting on a table). Barrett v. State, 983 So. 2d 795 (Fla. DCA 4th 2008).

Burglary is subject to Florida’s 10-20-Life law. This means that if a firearm is used during the burglary, the following mandatory minimum sentences (Fla. Stat. 775.087) kick into effect:

• If the firearm is carried or brandished during the offense but not fired, a mandatory minimum of 10 years in prison
• If the firearm is discharged but there is no injury or death, a mandatory minimum of 20 years
• If the firearm is discharged and results in an injury or death, a mandatory minimum of 25 years to life in prison

Depending on someone’s criminal record, they may face even harsher penalties than what the 10-20-Life law authorizes. This is especially the case if someone is sentenced as a PRR, HFO, HVFO, VCC, or under another 775.082 or 775.084 enhancement in Florida.

Some practical examples of a burglary include:

• A breaks into B’s house while she is on vacation and plans to steal jewelry from her room (burglary of a dwelling, unlawful intent to commit theft)
• M remains in a department store after it closes to try to steal cash from the register once everyone has left (unlawful remaining with criminal intent)
• C smashes the window of a locked truck in a driveway, reaches inside and steals a laptop (burglary of a conveyance and theft of the laptop)

Despite the seriousness of burglary charges in Florida, there are many defenses available to someone accused of this offense. These include:

• Lack of intent to commit a crime after entering/remaining unlawfully: Though this does not negate the unlawful remaining/entering (trespass), it defeats a burglary charge
• Consent or invitation to enter/stay: If someone was permitted to be in the residence at the time of the alleged burglary, this can be a viable defense – especially if evidence exists (such as the alleged burglar being a landlord or tenant)
• Mistaken identity/alibi: Especially potent if there is no corroborating evidence other than unreliable eyewitness accounts or grainy/blurry surveillance footage
• Area was open to the public (defeats allegation of unlawful entering)
• Abandonment: If the defendant went to carry out the burglary but then decided against it before the unlawful entry or remaining, burglary is not committed
• No actual entry (such as staying on the sidewalk)
• Procedural challenges (motions to suppress post-Miranda statements, motions to suppress illegally obtained evidence as “fruit of the poisonous tree,” etc.)

By contrast, theft occurs when someone knowingly obtains, uses, or attempts to obtain or use another’s property with the intent to do one of the following:

• Deprive the owner of the property temporarily or permanently, or
• Appropriate the property for the defendant’s use or the use of another person not entitled to it (without the permission of the owner)

Under Fla. Stat. 812.012, theft does not require forcible taking. Theft can also occur if the property of another is obtained by fraud, misrepresentation, or false promises (“If you give me your wallet right now, I’ll go buy you food,” etc.).

The penalties for theft (misdemeanor is petit theft, felony is grand theft) are very serious in Florida, and largely depend on the value of the item that is allegedly stolen. Misdemeanor theft occurs under the following conditions:

• If the property was worth less than $100, theft is a second-degree misdemeanor punishable by up to 60 days in jail and a $500 fine
• If the property was worth more than $100 but less than $750, theft is a first-degree misdemeanor punishable by up to 1 year in jail and a $1,000 fine
• If the property was worth $40 or less and was stolen from a home or an enclosed area (such as a porch), a first-degree misdemeanor 
• If the property was worth less than $100 but the person has a prior theft conviction, a first-degree misdemeanor

Third-degree felony theft occurs when any of the following are true:

• If the property was worth under $750 and the defendant has two or more prior theft convictions, a third-degree felony punishable by 5 years in prison and a $5,000 fine
• If the item stolen was a firearm, a third-degree felony punishable by up to 5 years in prison and a $5,000 fine (regardless of value)
• If the value of the item(s) stolen was between $750 and $20,000 and the defendant does not have prior theft convictions, theft is a third-degree felony
• If a motor vehicle, will (or other testamentary instrument), or emergency or law enforcement equipment under $300 in value is stolen, a third-degree felony punishable by up to 5 years in prison and a $5,000 fine
• Theft from a construction site, controlled substances, and other select items (such as fire extinguishers) are also third-degree felonies  

Second-degree felony grand theft occurs when any of the following are true:

• If the property was worth between $20,000 and $100,000, theft is a second-degree felony punishable by up to 15 years in prison and a $10,000 fine
• Property worth between $5,000 and $20,000 is stolen during a riot, aggravated riot, or state of emergency
• Retail theft of items aggregating to $3,000 or more in value within a 120-day period, or involving 20 or more items
• A second conviction for retail theft (third-degree felony)
• Theft by a group of five or more people when social media was used to solicit participants (theft rings)

First-degree felony grand theft (punishable by up to 30 years in prison and a $10,000 fine) occurs when any of the following are true:

• Property is worth $100,000 or more
• Theft of cargo occurs that is worth over $50,000 in interstate/intrastate commerce
• Theft of a law enforcement semitrailer
• Use of a motor vehicle as an instrument to the theft and causing $1,000 in damage
• Theft during a riot, aggravated riot or state of emergency with value over $20,000

Courts have consistently required the State provide evidence of specific intent to commit theft at the time of the taking. This cannot be accidental (such as a defendant picking someone’s bag up off the ground mistakenly thinking it’s their own). Segal v. State, 98 So.3d 739 (Fla. 4th DCA 2012)

Some examples of theft may include:

• Jenna enters Target during business hours, conceals a bottle of shampoo in her purse and walks out without paying 
• Alex works at a fast food restaurant, swipes $150 from the cash register and leaves without telling anyone
• Mark sees an expensive bike laying unlocked near a rack outside a dormitory hall and takes it

If someone is accused of theft (regardless of whether this is felony or misdemeanor), the State has the burden of proving the value of the property stolen. This may make the difference between felony and misdemeanor theft, depending on the allegations. Tindal v. State, 145 So. 3d 915 (Fla. 4th DCA 2014).

Defenses to theft in Florida include any of the following – one or more of which may apply in any given case:

• Lack of intent to commit theft (mistaken belief of ownership, etc.)
• Claim of genuine ownership (e.g. taking back a gaming console you let a friend borrow)
• Consent of the owner
• Alibi/mistaken identity
• Procedural defenses (moving to suppress evidence)
• Objective entrapment (if law enforcement was involved): Police conduct that is so egregious, it violates the due process rights of the defendant and contaminates the legal proceedings against a defendant. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019). 
• Subjective entrapment (Fla. Stat. Section 777.201): Defendant proves by a preponderance of the evidence that law enforcement induced them to commit the offense. If established, the State must prove beyond a reasonable doubt that the defendant was predisposed to act criminally. Munoz v. State, 629 So. 2d 90 (Fla. 1993).
• Value challenges of the property (partial defense)
• Involuntary intoxication: Florida law generally recognizes this defense if the intoxication (ingestion of alcohol, drugs, etc.) was caused by force, fraud or medical necessity – and the defendant was incapable of forming intent to commit the alleged act at the time as a result. Brancaccio v. State, 698 So. 2d 597 (Fla. 4th DCA 1997). However, voluntary intoxication is not a defense (Fla. Stat. 775.051).
• Duress or coercion: Rare and an affirmative defense, but may be applicable in certain cases (such as if defendant was scared of being killed/seriously injured if they did not steal a minor item)

Given all of the above information, the differences between burglary and theft include all of the following:

• Burglary involves unlawful entry onto/into property to commit a crime; theft involves unlawful taking of another’s property
• Burglary involves intent to commit a separate offense while unlawfully on/in the property; theft requires specific intent to deprive the owner of their property 
• Burglary does not require additional crime to be completed beyond entering or remaining unlawfully; theft requires an unlawful taking
• Burglary involves entry or remaining within conveyances, structures, or dwellings; theft involves personal property (money, vehicles, guns, etc.)
• Burglary is a felony; theft can be either a misdemeanor or felony
• Burglary is always covered by 10-20-Life; theft typically is not as the law applies to forcible felonies (forcible theft is usually considered robbery)

In sum, burglary and theft are two somewhat similar but distinct criminal offenses in Florida. If someone is arrested and formally charged in Florida in a case involving burglary or theft, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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