I Was Arrested for Burglary of an Occupied Dwelling in Florida — will I go to Jail?
Years ago, the crime of burglary was described as breaking and entering into a home in the dark of night, with an intention of committing a felony. Because of this, most of us think of a burglar dressed in black, climbing through a basement window as those in the house sleep peacefully, unaware. Today, there is seldom a “typical” burglary, however most states, including the state of Florida, punish burglaries of dwellings more seriously, and when the dwelling is occupied, the seriousness of the crime increases even more. When a person enters an occupied Florida dwelling without permission from the owner, with the intention of committing a crime, then burglary of an occupied dwelling has occurred.
“Without permission,” means access was gained either by breaking a door or window, by sneaking in through an unlocked door or window, or by obtaining permission to enter the house with a lie. (A young man convinces an elderly woman he needs to use her phone, but actually intends to commit a crime while inside). Further, if the person was initially invited into the dwelling, yet remains behind through deception with an intent to commit a crime, then burglary of an occupied dwelling has occurred. As an example, a person is invited to a party; while there he sees something he wants, so hides in the closet until everyone has gone to sleep, then takes the item.
Full Entry is Not Required and Criminal Intent is Implied
It is important to note that the person who intends to commit a crime in an occupied dwelling, does not necessarily have to have his or her entire body inside the dwelling in order to be found guilty of the crime. As an example, a person could open a window, and lean in until the jewelry box was in reach. It is also not necessary for the Florida prosecutor to prove intent on the part of the defendant.
The fact that an occupied dwelling was entered in a manner which did not include knocking on the front door and being invited in, allows a jury to infer the actions of the defendant had criminal intent. If evidence exists which shows the defendant entered an occupied dwelling in the middle of the night with a flashlight and a weapon, it tends to show intent to commit a crime. It makes no difference whether the defendant actually steals something or commits another crime—the crime of burglary is complete the moment a person enters the occupied dwelling with harmful intent.
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Penalties for Burglary of an Occupied Dwelling
The exact penalty for burglary of an occupied dwelling will be based on a specific formula which assigns points (discussed in further detail below) based upon the crime itself as well as mitigating circumstances of the defendant. Generally speaking, however, the punishment for burglary of an occupied dwelling—a second degree felony—is a prison term of not more than 15 years, and a fine of not more than $10,000.
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Statute for Burglary of an Occupied Dwelling in Florida
Florida Statute 810.02—and 810.02(3)(a) specifically—define the circumstances of a burglary in the state of Florida into an occupied dwelling. Under Statute 810.02(3)(a), burglary of a structure, when there is another person in the structure at the time the offender either enters or remains, is a felony of the second degree, punishable under Florida Statute 775.082, 775.083, or, if no assault occurs in the commission of the burglary and if the defendant is not armed with a dangerous weapon or explosive, under Statute 775.084.
Points Associated with Burglary of an Occupied Dwelling in Florida
The Florida Department of Corrections released Florida sentencing guidelines in the form of a scoresheet preparation manual. When a person is arrested for a felony crime, that crime is assigned a certain level as a primary offense. The level is then assigned a specific number of points. Should the defendant score above 44 points, they will be sentenced to time in a Florida state prison for a certain number of months—unless the Judge makes the decision to adjust the number of months downward.
Burglary of an occupied dwelling in the state of Florida is a level seven offense (with level 10 being the most serious crimes). A level 7 offense = 56 points. A prior criminal record can add additional points to that total. A legal status violation will add an additional four points (escape, fleeing, failure to appear, incarceration, pretrial intervention or diversion program, etc.).
If a firearm—semi-automatic or machine gun—was used in the commission of the burglary of an occupied dwelling, an additional 18 or 25 points can be added. Thirty points can be added to the total for a prior serious felony conviction. Enhancements can also add additional points—as an example, if the crime is a criminal gang offense, the points will be multiplied by 1.5.
The computation for prison sentence takes any amount of points over 44, subtracts 28, then multiplies the result by .75 to arrive at the prison sentence in months. If only the offense of burglary of an occupied dwelling were committed and there were no additional points, then 56 – 28 x .75 = 21 months, however if the total amount of sentence points (in this case, 56) are less than 60, the court may place the defendant in a treatment based drug court program rather than send him or her to prison.
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Mitigating Circumstances Which Could Decrease Points
As noted, the judge in the case has some discretion regarding the number of months of prison according to the calculations. Some of these mitigating circumstances include:
- The defendant was only an accomplice in the crime;
- The defendant played a relatively minor role in the crime;
- The defendant had a mental disorder;
- The defendant should be sentenced as a youthful offender;
- The defendant acted under duress;
- The defendant cooperated with the state of Florida to solve another crime;
- The defendant committed the offense in an unsophisticated manner;
- The offense was an isolated incident for which the defendant has expressed remorse;
- At the time the offense was committed, the defendant was not old enough to appreciate the consequences of his or her actions;
- There is a legitimate, non-coerced plea bargain in place;
- The defendant is amenable to a post-adjudicatory, treatment-based drug court program and is qualified to participate in said program, or
- The defendant was making a good-faith effort to obtain or provide medical assistance for an individual with a drug-related overdose.
Potential Defenses to Burglary of an Occupied Dwelling
As you can see, you could be sentenced to a significant amount of prison time if convicted of burglary of an occupied dwelling in the state of Florida. There are a number of defenses which may apply in your particular case—only your Florida criminal defense attorney can determine which defense will provide you the best chance for a positive outcome. Some of the common burglary defenses include:
- You had permission to be in the home, or were invited in;
- There is insufficient proof that the person who committed the crime was actually you;
- You were under the mistaken belief you had permission from the owner to be in the dwelling;
- You had implied permission to be in the building;
- There is a mistake of fact as to your whereabouts, or
- There was inadequate withdrawal of permission for you to be in the occupied dwelling.
The Importance of Speaking to an Experienced Florida Criminal Defense Attorney
As you can see, charges for burglary of an occupied dwelling in the state of Florida are extremely serious, and could land you behind bars for a significant amount of time. You should absolutely not remain unrepresented when facing such a harshly prosecuted charge. The attorneys at The Law Place can help you understand the laws associated with the crime of burglary of an occupied dwelling, explaining how your case is likely to fare in court. Most of all, we are committed to protecting your rights, and obtaining the best possible outcome on your behalf.
Florida Sentencing Guideline
The Law Place has created an automated program that allows individuals to determine what their sentence will probably be if they are found guilty of the crime they are charged with. That sentence calculator can be found HERE