Burglary, Robbery and Carjacking

The crimes of burglary, robbery and carjacking are ones that the Florida Legislature and the State Attorneys take very seriously.  They are theft crimes, but involve elements (or aggravators) that increase the level of crime and thus the possible penalties – sometimes requiring minimum mandatory prison.  If you are charged with any of these, be sure to understand what you are up against.  As with any case, you will want to find the best criminal defense attorney in Orlando that is right for you.  There may be very good defenses available to you for which an experienced theft crime attorney will know to look.

Burglary

Most people associate burglary with stealing.  In Florida, that is not always the case.  In Florida, burglary is when you enter into another person’s home or vehicle with the intent to commit an offense.  That offense does not have to be a theft.  If you enter a home and commit a battery, you may be charged with a felony punishable by life called Burglary of a Dwelling with an Assault or Battery Therein.  The key question will be whether or not you entered the dwelling with the intent to commit the crime.

Structure versus Dwelling

Whether the place you entered is classified as a structure or a dwelling will depend on what the State proves.  If they can show that it has a roof over it and is designed to lodge people there overnight, it is a dwelling.  If they only prove that there is a roof over it, it is just a structure.

Armed versus Unarmed

To be found guilty of burglary while armed, you do not necessarily have to start out by being armed.  If you become armed during the course of the burglary, that may be enough – the weapon need not even be loaded!  To be considered a dangerous weapon, the State does not have prove that you intended or were willing to use the weapon – but they must prove that the weapon was likely to produce death or great bodily harm.

Lesser Included Offenses

If the State is charging you with Armed Burglary or Burglary of a Structure with a Battery, they may fall short of proving your guilt as charged.  If they do not get the enhanced offense that they are seeking, they may still get a lesser included offense.  For example, a misdemeanor assault, a misdemeanor battery, simple trespass, criminal mischief, or simple burglary (which is still a 3rd degree felony).

Lesser included offenses can work for or against you at trial.  If the jury only has one option to charge you with during their deliberations and the evidence is not that strong, they may come back not guilty.  However, if they are given the choice for a lesser included offense, they may come back guilty on that.  That’s an example of working against you.  On the other hand, if the evidence is strong against you, you may want to give them the option to give you a lesser included.  In my experience, when the jury can give you a break or the benefit of the doubt (even where the evidence may be strong against you), they usually come back with a guilty verdict on a lesser included offense.  A guilty verdict on a lesser included offense is always much better than a guilty verdict on the highest charge.  The decision to ask for a lesser included offense is an example of trial strategy.

Burglary of a Conveyance or Structure (Unoccupied)

Entering someone’s house or vehicle with the intent to steal or commit any crime is a burglary.  For obvious reasons, the crime is not as bad if no one is home.  Therefore, it remains only a third degree felony.

Crime Level: 3rd degree felony

Most likely outcome*: Felony probation, community service hours, no return to the structure, an impulse control course, court costs, costs of prosecution.

Maximum Penalties: 5 years in state prison or probation; $5,000 fine.

Collateral Consequences: Stigma of being arrested for a crime of dishonesty.

Possible Diversion: No.

Defenses: Mistake (no intent), Necessity, Invitation (entered with permission).

Related Offenses: Petit Theft, Grand Theft, Robbery, Carjacking, Home Invasion Robbery.

* For Orange County, Florida, assuming no priors or aggravators.  Actual outcomes vary from case to case and this most likely outcome estimate should not be relied upon as definite.

Burglary of a Conveyance or Structure (Occupied)

Your criminal liability goes up significantly if someone is home when you break in.  It does not matter whether you thought the house was empty.  If someone is in there, it is a higher level crime – a second degree felony.  In Florida, our homes are our castles and we all have the right to feel secure while home.  When someone breaks in, it violates the sanctity of your home.  That is one of the many reasons, this crime is taken very seriously.

Crime Level: 2nd degree felony

Most likely outcome*: Felony conviction, jail with probation to follow, community service hours, no return to the structure, an impulse control course, court costs, costs of prosecution.

Maximum Penalties: 15 years in state prison or probation; $10,000 fine.

Collateral Consequences: Stigma of being arrested for a crime of dishonesty.

Possible Diversion: No.

Defenses: Mistake (no intent), Necessity, Invitation (entered with permission).

Related Offenses: Petit Theft, Grand Theft, Robbery, Carjacking, Home Invasion Robbery.

* For Orange County, Florida, assuming no priors or aggravators.  Actual outcomes vary from case to case and this most likely outcome estimate should not be relied upon as definite.

Burglary of a Conveyance or Structure (With a Battery Therein)

When someone breaks into your home, it violates the sanctity of your “castle.”  When someone breaks in and commits a crime of violence upon you, it becomes significantly more offensive.  It’s one thing to break in to steal, it is another to break in to harm a person.  Over the years, I have seen many of these cases.  I have seen cases that should be classified as simple batteries, but because they happened to occur in a structure or conveyance (a car), they were charged as a first degree felony punishable by life.  If you are charged with such a crime, you could even be denied a bail bond.

Crime Level: 1st degree felony, punishable by life

Most likely outcome*: Felony conviction, jail with probation to follow, community service hours, no return to the structure, no contact with victim, an impulse control course, anger management, court costs, costs of prosecution, cost of investigation.

Maximum Penalties: Life in prison; $15,000 fine.

Collateral Consequences: Stigma of being arrested for a crime of dishonesty.

Possible Diversion: No.

Defenses: Mistake (no intent), Necessity, Self-Defense, Invitation (entered with permission).

Related Offenses: Petit Theft, Grand Theft, Robbery, Carjacking, Home Invasion Robbery.

* For Orange County, Florida, assuming no priors or aggravators.  Actual outcomes vary from case to case and this most likely outcome estimate should not be relied upon as definite.

Robbery

Robbery, like burglary, can be committed in various ways.  Naturally, the more violent the circumstances, the more serious the crime.  Robbery is a variation of theft but is more violent than burglary because it involves the use of force or fear.  The taking of the property must put the victim in fear or overcome the resistance of the victim.  The most common lesser included offenses of robbery are assault, petit theft and resisting a merchant.

Robbery with a weapon is a higher level of simple robbery.  Robbery with a deadly weapon is even higher and robbery with a firearm even higher yet.  Here are the different definitions:

  1. Robbery with a weapon is robbery with any object that could be used to cause death of great bodily harm.

  2. Robbery with a deadly weapon is robbery with a weapon that is used (or threatened to be used) in a way that is likely to produce death or great bodily harm.

  3. Robbery with a firearm is simply that – committing a robbery with a gun.  The gun does not have to be loaded or capable of firing.

 Robbery by Sudden Snatching

Robbery by sudden snatching is perhaps the most common form of robbery.  It is simply taking by force or fear the property of another person.

Crime Level: 3rd degree felony

Most likely outcome*: Felony conviction, felony probation, community service hours, no return to the scene of crime, no contact with victim, an impulse control course, anger management, court costs, costs of prosecution, cost of investigation.

Maximum Penalties: 5 years in prison or probation; $5,000 fine.

Collateral Consequences: Stigma of being arrested for a crime of dishonesty.

Possible Diversion: No.

Defenses: Mistake (no intent), Necessity, Consent,

Related Offenses: Petit Theft, Grand Theft, Burglary, Carjacking, Home Invasion Robbery.

* For Orange County, Florida, assuming no priors or aggravators.  Actual outcomes vary from case to case and this most likely outcome estimate should not be relied upon as definite.

Carjacking

Carjacking in Orlando is prosecuted vigorously by the Assistant State Attorneys.  It is a first degree felony and your offer in such a case will likely include prison.  Put simply, carjacking is stealing someone’s car by force, violence, or threat.  The amount of time or reason you take the car is no defense – unless you can apply the defense of necessity, which rarely applies.

Like all the other theft offenses, carjacking can be enhanced (or the level raised) if you use a weapon or gun.  Additionally, if you injure the driver or anyone else who was in the car, the prosecutor will likely increase the offer and the judge will look even more disfavorably upon the case and likely hand down a much harsher sentence.

Crime Level: 1st degree felony

Most likely outcome*: Felony conviction, prison time followed by felony probation, community service hours, no return to the scene of crime, no contact with victim, an impulse control course, anger management, court costs, costs of prosecution, cost of investigation.

Maximum Penalties: 30 years in prison or probation; $10,000 fine.

Collateral Consequences: Stigma of being arrested for a crime of dishonesty.

Possible Diversion: No.

Defenses: Mistake (no intent), Consent

Related Offenses: Petit Theft, Grand Theft, Burglary, Robbery, Home Invasion Robbery.

* For Orange County, Florida, assuming no priors or aggravators.  Actual outcomes vary from case to case and this most likely outcome estimate should not be relied upon as definite.


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