Lesser-Included Offenses of Burglary in Florida

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

If someone is charged with burglary (Fla. Stat. 810.02) in Florida, they will quickly realize this is a very serious felony offense. Thus, it is important to understand lesser-included offenses – as requesting an instruction on a lesser-included offense at trial may lead to someone avoiding a conviction for burglary (and instead being found guilty of misdemeanor trespass, or nothing at all).

In Florida, a lesser-included offense is a crime whose elements are entirely contained within the elements of a more serious offense that the defendant is being charged with. A lesser-included offense carries a lesser punishment than the charged crime and can be in one of two different categories – necessary or permissive. 

This blog will discuss necessary (Category 1) and permissive (Category 2) lesser-included offenses of burglary in Florida, and the role that lesser-included offenses play at a felony burglary trial.

A lesser-included offense of burglary may be necessary or permissive. In practice, the difference between these two is the following:

• Necessary lesser-included offense (Category 1): The defendant cannot be found guilty of the greater offense without also being guilty of the lesser-included (e.g. trespass if charged with burglary). Courts must instruct the jury on a Category 1 lesser-included offense if requested by either the prosecution or the defense.
• Permissive lesser-included offense (Category 2): Instructions regarding a permissive lesser-included may be given based on the facts of the case – and only if the evidence indicates that the lesser crime may have been committed. Category 2 lesser-included offenses are not inherently committed if someone commits the greater crime, but may have been committed depending on the facts of the case (e.g. damaging property during a burglary could warrant a criminal mischief instruction).

To determine the lesser-included offenses for burglary, it is important to first understand the elements.

Burglary in Florida is committed when all of the following are proven beyond a reasonable doubt:

• The defendant entered or remained within the property (either a structure, dwelling or conveyance) without the consent of the owner
• The defendant had the intent to commit a separate crime inside (e.g. theft), even if this separate crime was never completed 
• The property was a dwelling (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 offense in Florida. The penalties someone faces if charged with burglary depend on the facts of an individual case:

• Third-degree felony: If burglary occurs in an unoccupied structure or conveyance with no aggravating factors (unarmed), it is a third-degree felony punishable by up to 5 years in prison and a $5,000 fine
• Second-degree felony: If burglary occurs within an unoccupied or occupied dwelling, structure or conveyance but without the defendant having been armed or committing assault/battery
• First-degree felony punishable by life: Armed burglary (firearm, knife, etc.) or burglary with an assault/battery 
• First-degree felony punishable by life: Burglary involving the use of a vehicle (such as smashing through the wall of a business with a car and then burglarizing it), or causing more than $1,000 in damage during the burglary

Given the elements of burglary and the potential penalties, there are two necessary (Category 1) lesser-included offenses of burglary – trespass and attempted burglary. 

For trespass to occur, the State must prove beyond a reasonable doubt that the defendant entered or remained within the property (either a structure, dwelling or conveyance) without an owner’s consent (or consent of another person lawfully in control of the premises). Williams v. State, 461 So.2d 1010 (Fla. 5th DCA 1984)

Trespass (Fla. Stat. 810.08 and 810.09) is considered a second-degree misdemeanor if in a structure or conveyance, punishable by up to 60 days in jail if the structure or conveyance is unoccupied. Trespass in a dwelling is a first-degree misdemeanor punishable by up to 1 year in jail and a $1,000 fine. If someone is armed or becomes armed during the trespass, trespass is considered a third-degree felony (up to 5 years in prison and a $5,000 fine).

Under Williams, if a party to a burglary case (prosecution or defense) requests a trespassing jury instruction (outlining the elements of trespass to the jury and noting they may find the defendant guilty of the lesser offense without finding them guilty of burglary), this is reversible error on appeal (requiring a new trial).

The other necessary lesser-included offense of burglary is attempted burglary (Fla. Stat. 810.02 and 777.04). For attempted burglary to occur, the following must be proven beyond a reasonable doubt:

• The defendant must have developed a specific intent to commit burglary (enter or remain in a structure, dwelling or conveyance unlawfully with the intent to commit a separate offense therein)
• The defendant performed an overt act towards committing the burglary that went beyond mere preparation (e.g. attempting to pry open a door or tampering with a lock)
• The defendant did not complete the intended offense (e.g. caught before they can enter a house causing them to run away)

Attempted burglary is charged as one degree lower than the completed crime, making it a lesser-included offense (e.g. attempted second-degree felony burglary is a third-degree felony if attempted but not completed). 

Though attempted burglary and trespass are the only necessary lesser-included offenses of burglary, there are multiple offenses that can be properly classified as permissive lesser-included offenses (Category 2) depending on the facts of the case. Though a judge does not have to give a permissible lesser-included instruction, this may be done if the evidence warrants it and it is requested by a party. Nurse v. State, 658 So.2d 1074 (Fla. 3d. DCA 1995)

Examples of permissive lesser-included offenses if someone is facing a burglary charge may include:

• Grand theft: If someone is alleged to have feloniously stolen property from a structure, dwelling or conveyance but the evidence is disputed as to whether they unlawfully entered or remained in the structure, conveyance, or dwelling, this can be a Category 2 lesser-included offense
• Petit theft: If the value stolen only rose to a level of misdemeanor theft and there is dispute as to unlawful entry or remaining, a defendant may be entitled to a petit theft instruction
• Criminal mischief (Fla. Stat. 806.13): If the property of the alleged victim was damaged willfully and maliciously but there is dispute as to unlawful entry/remaining, this may be given as an instruction
• Battery/assault: If there is dispute as to whether there was unlawful entry/remaining but an assault or battery was committed within the residence, the court may instruct the jury on battery (unlawful physical contact) or assault (threat of imminent unlawful physical contact) as lesser-included offenses

In some cases, if a defendant burglarizes something that can be either a conveyance or a dwelling (such as an RV) and is charged with burglary of a dwelling, they may request a lesser-included instruction for burglary of a conveyance. This is because burglary of a conveyance (if this is unoccupied) is a third-degree felony – burglary of an unoccupied dwelling is a second-degree felony.

Critically, for a lesser-included offense instruction to be given, the potential punishment for the lesser-included offense must be less severe than the potential penalties if someone is convicted of the greater offense. Nurse v. State, 658 So.2d 1074 (Fla. 3d. DCA 1995)

For example, if a party requests a lesser-included instruction for felony criminal mischief (damage of over $1,000 to property, punishable by up to 5 years and a $5,000 fine) and the greater charge is burglary of an unoccupied structure (also a third-degree felony), this request must be denied. This is because the defendant faces the same maximum exposure if convicted of either offense.

In sum, burglary in Florida is a serious felony involving entering or remaining in an unoccupied structure, conveyance, or dwelling with the intent to commit a separate crime therein. Category 1 lesser-included offenses for burglary are trespass and attempted burglary, whereas Category 2 (permissive) lesser-included offenses may include assault, battery, criminal mischief, theft, and more.

For someone to receive an instruction for a lesser-included offense in Florida, one of three things must be true:

• The elements of the lesser offense are contained entirely within the greater offense (necessary)
• The elements of the lesser offense are not always contained within the greater offense, but they appear to be in this case (permissive)
• The potential penalties for the lesser-included offense are not equal to or greater than the penalties for the greater offense

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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