What is Possession of Burglary Tools in Florida?

May 30, 2025 Don Pumphrey, Jr. Criminal Defense, Theft/Property Crimes Social Share

In Florida, burglary is considered a very serious felony offense. But a lesser-known offense than (and lesser-included offense of) burglary is possession of burglary tools – which is itself a very serious felony. This article will discuss the crime of possession of burglary tools, the elements the State must prove to establish someone’s guilt of this offense, and defenses.

Possession of burglary tools is criminalized in Florida under Fla. Stat. Section 810.06. The Florida Bar’s standard jury instructions specify that to establish the crime of possession of a burglary tool or burglary tools in Florida, the State must prove the all of the following beyond a reasonable doubt:

• The defendant intended to commit a burglary or trespass at the time of possession of the tools The defendant must have had in their possession a machine, tool, or implement that they intended to use, or allow to be used, in the commission of a burglary or trespass
• The defendant must have performed an overt act towards the commission of the burglary or trespass, which goes beyond merely thinking or talking about it. Sloan v. State, 248 So.3d 290 (Fla. 5th DCA 2018); Keys v. State, 949 So.2d 1080 (Fla 2d. DCA 2007)

The line between mere preparation and an overt act is a question of fact for the jury to decide. Mere preparation is defined as devising or arranging the means or measures necessary to commit a crime. An overt act consists of some movement towards committing the crime that comes after mere preparation – but it does not have to be the last possible act towards completing the crime. Berger v. State, 259 So. 3d 933 (Fla. 5th DCA 2018).

Possession of burglary tools in Florida is a third-degree felony. A third-degree felony is punishable by up to 5 years in prison and a $5,000 fine. 

Under Fla. Stat. Section 810.02(1)(b), burglary means entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter. Under Fla. Stat. 810.08, trespassing involves willful, unauthorized or unlicensed entry or remaining on a property (including within a structure or conveyance).

Note: Even though trespass is generally punished less seriously than burglary, possession of burglary tools for the purpose of trespass remains a third-degree felony under 810.06.

The question of what constitutes a burglary tool is a common one. As there is no list under Florida law as to what can constitute a burglary tool, this is assessed based on the totality of the circumstances. The State must prove that the defendant actually intended to use the tools to commit the crime of burglary or trespass. Calliar v. State, 760 So.2d 885 (Fla. 1999). Some common examples may include:

• Lock picks
• Bolt cutters
• Crowbars 
• Screwdrivers
• Masks or disguises

Courts have consistently held that even possession of otherwise innocent items, if this is coupled with the use or intended use of the items to commit a burglary or trespass, can qualify as unlawful under Fla. Stat. Section 810.06. Preston v. State, 373 So.2d 451 (Fla. 2d. DCA 1979) 

But if an item on its face does not appear to facilitate breaking and entering of a dwelling, structure, or conveyance, courts presume that they are not a burglary tool — unless there is separate evidence they were actually used with the intent of committing a burglary or trespass. Courts have generally held that gloves are not burglary tools under the plain and ordinary meaning of the statute. T.R.C. v. State, 290 So.3d 1064 (Fla 2d. DCA 2020)

In Fortson v. State, Florida’s First District Court of Appeal held that tools not employed or intended to be used to gain entry to a property or conveyance do not constitute burglary tools. This clarifies that the State cannot simply classify anything in a defendant’s possession that could be used to gain entry as a burglary tool – they must have been used or have been intended to be used as burglary tools by the defendant. Fortson v. State, 179 So.3d 414 (Fla. 1st DCA 2015) 

Due to the fact that possession of burglary tools is often charged based on circumstantial evidence and the definition of a “burglary tool” is fluid, various defenses exist. These include:

• Lack of criminal intent (possessing the item with a legitimate purpose)
• No overt act towards burglary or trespass
• Lack of knowledge or control of the alleged burglary tool (if not found on someone’s person)
• Illegal search and seizure (evidence of tool may be suppressed as “fruit of the poisonous tree” under Wong Sun v. United States, 371 U.S. 471 (1963))
• Item is not a burglary tool (such as latex gloves)

In sum, possession of burglary tools is a third-degree felony offense in Florida. For someone to be found guilty, it must be established that they possessed a “tool, machine, or implement” used or intended to be used to commit a burglary or trespass – and there was an overt act taken to commit that burglary or trespass that went beyond mere preparation.

There is no set definition of a burglary tool – it may include various items like crowbars, lock picks, and screwdrivers depending on the circumstances. Various defenses exist to the charge, including lack of underlying criminal intent, no overt act taken to commit burglary or trespass, or an argument that the tool cannot be considered a burglary tool as a matter of law.

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