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What Is the Difference Between 1st-Degree and 2nd-Degree Burglary?

burglary lawyer

Burglary refers to the act of entering a premise with the intent of committing an offense. Someone is presumed to have committed the crime if they gained unauthorized entry to the premises, or if upon authorized entry, their permission to remain was withdrawn or they lingered secretively intending to commit a crime.

Burglary is a felony offense whose degree varies depending on the circumstances. For instance, you’re charged with 1st-degree felony if, during the offense, you assaulted or battered a person or were armed with an explosive or a dangerous weapon. You could also be guilty of first-degree burglary if you entered an occupied or unoccupied premises and used a vehicle as an instrumentality to damage the premises or caused damages to the premises or property within the premises worth more than $1,000.

On the other hand, you’re charged with 2nd-degree burglary if, during the offense, you did not assault or batter a person or you weren’t armed with an explosive or a dangerous weapon, but you entered and remained in a;

  • Dwelling and there was or wasn’t another person at the time
  • Structure or conveyance and another person was present at the time
  • Authorized emergency vehicle, or
  • Structure or conveyance intending to commit theft of a controlled substance

If you have been charged with 1st or 2nd-degree burglary, continue reading for a better understanding of the implications of the charges, including apparent penalties and the possible defenses your attorney could leverage to argue your case.

Understanding Florida Burglary Laws

Under Florida laws, burglary is considered a felony of either first, second, or third degree, depending on the circumstances. 1st and 2nd-degree burglary involves entering a premise (dwelling, structure, or conveyance) with the intent of committing a crime, but the two are differentiated by the circumstances arising during the offense as explained above. On the other hand, a 3rd-degree burglary involves entering a structure or conveyance with the intent to commit a crime, and there’s no other person at the time the offender enters and remains on the premises.

The law defines the different types of premises (dwelling, structure, conveyance) as follows;

  • Dwelling – Is a building or conveyance of any kind with a roof over it, used for temporary or permanent habitation
  • Structure – Is a building, either temporary or permanent, with a roof over it, e.g., a businesses premises
  • Conveyance – Is any vessel, motor vehicle, ship, railroad car, aircraft, sleeping car, or trailer

For second and third-degree burglary, aggravating circumstances such as the offense being committed during a riot or aggravated riot graduate the charge to a first or second-degree burglary, respectively.

Penalties of 1st-Degree and 2nd-Degree Burglary

First and second-degree burglary are serious crimes, carrying harsh penalties. There are standard penalties for both, though the presence of aggravating factors could increase the severity of the sentence. The law prescribes the following penalties for each of the offenses;

First-degree burglary 

Second-degree burglary

  • Imprisonment – 15 years
  • Fine – $10,000

If you have been charged with a 2nd-degree burglary and have had two or more previous felony convictions, the law considers you a habitual felony offender, in which case the sentence increases from 15 to 30 years.

You may also face enhanced penalties if the court determines you’re a habitual violent offender, e.g., if you were convicted of armed burglary. In this case, you’re not eligible for release for 15 years if serving a first-degree burglary sentence and ten years if on a second-degree burglary conviction.

For a violent career criminal, the penalties include imprisonment of up to 40 years with a mandatory minimum term of 30 years for a 2nd-degree burglary conviction.

In all the aggravated charges, imprisonment for first-degree burglary remains a life sentence.

Possible Defenses

burglary lawyer

Fighting burglary charges requires a strong and valid defense to weaken the prosecutor’s case and argue in your favor. To be convicted, the prosecution must prove that you gained entrance to the premises with the intent to commit a crime.

An experienced theft and property crimes attorney can help you counter the accusations by developing a defensive strategy and providing supporting evidence to prove your innocence to the court.

Possible defenses in burglary charges include;

Mistaken Identity

If you were wrongly identified, your attorney could use the mistaken identity defense to fight the allegations. It’s not uncommon for people at the crime scene to misidentify the actual offenders by likening them to people who closely resemble them. Where there were cameras, unclear footage could also lead to mistaken resemblance.

Once you talk with an attorney, they should be able to help you gather relevant evidence to demonstrate to the court that it’s a case of mistaken identity.

Lack of Criminal Intent

If you were at the property during the alleged offense but didn’t intend to commit a crime, your attorney could help you provide evidence to support your claim. Remember, the prosecution has a burden to demonstrate your intent to commit an offense. If you have evidence proving your lack of intent, you have a better chance of fighting the charges.

Legally Present

If you were legally on the property either through permission or invitation by the owner and the permission had not been withdrawn, or you were not secretively lingering at the premises at the time the offense is said to have been committed, legally, you’re guilty of burglary. Your duty, in this case, will involve proving that you had permission to remain on the premises at the time of the said offense.


If you have proof you were not at the property when the crime is said to have occurred, then you can use an alibi as your defense. Maybe you could have someone testify about your whereabouts on that day or produce evidence to demonstrate the same.

Are You Facing First or Second-Degree Burglary Charges?

If you’re facing 1st or 2nd-degree burglary charges, an unfavorable outcome can have life-changing consequences. Once arrested, it’s important to engage an experienced theft and property crimes defense attorney to help you gather relevant evidence and develop a strong case to prove your innocence.

At Meltzer & Bell, we have a team of compassionate and experienced theft and property crimes defense attorneys who can help evaluate your case and guide you accordingly. Should we find merit in your case, you can count on us to give you the best representation possible. Contact us today and tell us more about your case.

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