Can Intent to Commit a Separate Offense Be Inferred in a Florida Burglary Case?

August 28, 2025 Don Pumphrey, Jr. Criminal Defense, Theft/Property Crimes Social Share

In Florida, burglary (Fla. Stat. 810.02) is an extremely serious felony offense. In addition to entering or remaining unlawfully within a dwelling, structure or conveyance, a key element of burglary is that the defendant must have had the intent to commit a separate crime once inside.

In many burglary cases, there is only circumstantial (indirect) evidence that the defendant intended to commit an additional offense – which distinguishes burglary from a far less serious charge like trespassing. This raises the question: can intent to commit a separate offense be inferred in a Florida burglary case without direct evidence (e.g. a confession)?

The answer is yes, if other (indirect) evidence proves this beyond a reasonable doubt. This blog will discuss the elements and penalties of burglary. It will also address whether someone may be convicted of burglary even in the absence of direct evidence they attempted to commit a separate offense after unlawfully entering or remaining.

Burglary in Florida is defined as entering or remaining in a structure, dwelling or conveyance without permission and with the intent to commit a separate crime inside.

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

• The defendant entered or remained within a structure, conveyance, or dwelling without the consent of the owner
• The defendant had the intent to commit a separate crime therein at the time, even if this was not completed
• The property was a dwelling (a building designed for lodging, either permanently or temporarily), structure (non-residential buildings like garages or offices) or conveyance (car, truck, van, etc.)

Burglary is a felony in Florida. It is also an enhanceable offense, so charges can escalate quickly depending on the facts of a case. Florida law provides:

• If the burglary occurs in an unoccupied structure or conveyance and the defendant was unarmed and did not commit an assault or battery, burglary is a third-degree felony (punishable by up to 5 years in prison and a $5,000 fine) 
• If the burglary occurs within an unoccupied or occupied dwelling, or an occupied structure or conveyance, burglary is a second-degree felony (punishable by up to 15 years in prison and a $10,000 fine)
• If someone commits armed burglary (using a deadly weapon or acquiring the weapon to use during the burglary, such as grabbing a knife on the table to wield against a victim), or commits an assault or battery during a burglary, burglary is a first-degree felony punishable by life in prison
• If the burglary involves the use of a vehicle as an instrument of the burglary (e.g. smashing the wall of someone’s home) or $1,000+ of damage is caused, burglary is a first-degree felony punishable by life

Note: Armed burglary requires a deadly weapon (gun, knife, etc.) to be within the immediate physical reach of the defendant and an intent to use it during the offense. Barrett v. State, 983 So. 2d 795 (Fla. DCA 4th 2008).

Critically, burglary is subject to Florida’s 10-20-Life law (Fla. Stat. 775.087), which significantly increases penalties for forcible felonies that involve the use of a firearm. That law provides:

• If a firearm is carried or brandished in the commission of the burglary, a mandatory minimum of 10 years in prison
• If a firearm is discharged during the commission of the burglary (but no injury or death of a victim), a mandatory minimum of 20 years in prison
• If a firearm is discharged and injury or death results, a mandatory minimum of 25 years to life in prison

The penalties for burglary may be even more serious if someone is subject to a designated statutory sentencing enhancement in Florida. Under Fla. Stat. 775.082 and 775.084, someone may face decades in prison even for a burglary without aggravating factors if sentenced as a PRR, HFO, HVFO, VCC, or using another enhancement.

When discussing “inferring intent” in a burglary case, this does not mean the jury can assume intent to commit a separate offense in the absence of evidence. But under certain circumstances, indirect evidence or the very nature of the offense provides strong support that there was an intent to commit a separate offense once illegally inside a structure, dwelling or conveyance.

Under Fla. Stat. 810.07, stealthy (secret) entry or remaining provides “prima facie” evidence of intent to commit a separate offense. State v. Waters, 436 So.2d 66 (Fla. 1983). This means that if the State clearly shows someone entered or remained by stealth and someone is charged with burglary, this fact alone can support a conviction (but won’t necessarily in all cases).

Courts consider other factors such as the presence of items available to be stolen. In prior cases, Florida’s courts have held that a combination of eyewitness testimony regarding the nature of a defendant’s entry combined with a large amount of items available to be stolen (such as in a bank or warehouse) can support a burglary charge. Toole v. State, 456 So.2d 1268 (Fla. 1st DCA 1984)

In Toole, the appellant broke into a “lodge building” known to store ample money and equipment inside without permission. Toole appealed his conviction, arguing there was insufficient evidence of intent to commit a separate offense therein. But the 1st DCA disagreed, noting the nature of the building, and the fact that Toole entered secretly and without permission, was clear evidence of his intent to commit theft once inside.

Note: The “separate offense” that makes a trespass (Fla. Stat. 810.08) into a burglary cannot be burglary or trespass. Trespass is automatically committed when someone unlawfully enters or remains – so making trespass the “separate offense” would make all trespassing into burglary. Moreover, burglary is the charged offense, not a separate offense. Ellis v. State, 425 So.2d 201 (Fla. 5th DCA 1983)

Jury instructions must clearly state that burglary and trespass cannot be the “separate offense” that support a burglary conviction. If this is not told to the jury, this is a fundamental error that may lead to reversal of the verdict. Williams v. State, 305 So.3d 673 (Fla. 3d. DCA 2020)

Ultimately, the question of intent to commit a separate offense after someone unlawfully enters or remains in a structure, conveyance, or dwelling can be proven by:

• The completion of a separate offense therein
• The clear attempt of the separate offense (direct evidence)
• Indirect evidence of intent to commit the separate offense (such as stealthy entry)

Before an inference can be drawn, the State must still prove this intent beyond a reasonable doubt. Just because some circumstantial evidence exists of a defendant’s intent to commit a separate offense therein, does not mean this element of burglary is automatically satisfied. 

Though disputing intent to commit a separate offense therein may not get someone totally “off the hook” (if trespass is undisputed), trespassing is significantly less serious than burglary. It is usually charged as a second- or first-degree misdemeanor, and only considered a felony under limited circumstances (e.g. armed trespass in an occupied dwelling).

Other defenses to burglary in Florida may include any of the following, depending on the facts of the case:

• Consent or invitation to enter 
• Mistaken identity/alibi
• The area entered was not a dwelling, structure, or conveyance (such as an open yard)
• No entry: Defined as at least a part of the defendant’s body or a tool they are using into the property. If actual entry did not occur (such as standing on the steps), this is not a burglary.
• Open to the public (no burglary in an open grocery store, for example – though someone may be charged with robbery or another offense depending what they do while inside)
• Abandonment: The defendant decided not to commit a burglary voluntarily before going through with it 
• Involuntary intoxication (under limited circumstances)

In sum, intent to commit a separate offense after entering or unlawfully remaining in a structure, dwelling or conveyance can be inferred by indirect evidence in a Florida burglary case. In the absence of direct evidence, courts generally see stealthy (secret) entry as “prima facie” proof of intent to commit a separate offense once inside a structure, dwelling or conveyance.

But indirect evidence is often unreliable, especially if based on eyewitness accounts without corroboration. Finding an experienced and aggressive burglary defense attorney to challenge the intent prong of a burglary charge can change the direction of a case. 

If someone is arrested and formally charged in Florida in a case involving burglary, attempted 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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