Brad Post

Michael D. Kenny, Attorney

Brad Post: All right. Welcome to floridadefense.com podcast. We are speaking to Tampa burglary charges defense lawyer Mike Kenny, at the Bauer, Crider, and Parry, law firm in Tampa, Florida.

Michael D. Kenny, Attorney: Morning.

B: Mike, we’ve been speaking on theft crimes. Last edition we talked about robbery charges. Today, we’re going to be talking about burglary, which are two different areas. Correct?

M: That’s right. It’s kind of funny, people use those terms, you hear people discuss them. I think lay folks might use the term robbery when they say, “My house was robbed.” But there’s specific terms, these are like “terms of art”, in the legal world. A burglary specifically means a theft from a particular location. And there's certain elements that have to be established in order for something to qualify as a burglary. Whereas robbery is like what we talked about before. Robbery means that the way the item was taken. Whether the person used some kind of force to take it, some threat of force, or that the victim at some point became aware during the course of the taking that an item is being stolen from them.

They're all theft related, but a burglary specifically means the entering, or remaining, in a dwelling (which is basically a home), structure (which is something that is not a home, but like a business), or conveyance (which is an automobile or anything that basically transports folks) with the intent to commit an offense therein. Then there is an exception: unless the premises that are at the time open to the public, or the defendant is licensed, or invited to enter. So, that’s your basic burglary: a person enters a home, with the intent to commit a crime inside, and that essentially is a burglary. And it doesn't have to be that they have to steal something. In the vast majority of burglary crimes, that's what happens - a person breaks into a home and steal some items (a television, property, medicine) any one of those items. And depending upon what type of place of that they enter determines the severity of the crime. Generally speaking, a burglary of a conveyance, like a car, is a third degree burglary. A person walking down the street, they’re an opportunist, and they check the door handles to find out what cars will open in the middle of the night. And they find one that opens. Once they reach inside and take whatever items they can get, that’s a burglary of the third degree. That’s a burglary of a conveyance.

A person goes to a home, enters the home, and walks out with a television set. That’s a burglary of the second degree. Punishable by up to 15 years in prison. A person who gets convicted for the first-time burglary, even if they have no prior criminal history, scores on the score sheets that we use in Florida, a minimum of 21 months in the Department of Corrections. So, almost 2 years, even with no prior criminal history, and that doesn't change unless there's some type of reduction to the charge, or some negotiation in a plea disposition. The judge really doesn't have any discretion.

And then there's the third degree burglary that comes up businesses. A person breaks into a store that may be closed at night, and walks out with something. So, that's the basic definition of a burglary: that you enter with the intent to commit an offense therein. So why that matter, the intent to commit an offense therein? That’s pretty important because that's what separates a felony in a lot of cases from a misdemeanor. So say a person, which I’ve seen as a prosecutor, a lot of times you might have some homes that were abandoned for a while, and maybe there's some homeless individuals who ended up spending the night in the home. And after spending the night in the home, maybe they damaged some of the property. Well, in that case, probably most the time the person when they entered the home didn't have an intent to commit an offense therein. Just walking into a home and taking a nap, or going to sleep, is not really anything other than a trespass. Which is a misdemeanor. It doesn't carry any kind of prison sentence whatsoever. If the person enters the home, and end up stealing something, or enters the home and end up causing some type of criminal mischief or damage, courts have decided that you can use that the act that is committed to prove that that was the initial intent upon entering.

There's another way to prove intent, and they say that you don’t have to prove intent to commit offense therein if the person is entering the home surreptitiously (meaning entering the home under cover of darkness, maybe disguised the middle of the night, sneaking in). If that's able to be established you don't have to prove what the person’s intent was. But in all burglary cases, a basic element the prosecutor has to prove to the jury, is that the time of the entry this person intended to commit a crime.

I've have seen plenty cases, both as a prosecutor, as a defense lawyer, where you have individuals who are friends, or associates, or acquaintances who know each other. A person is invited into the home. At some point there's an argument, and maybe a battery happens, somebody hits somebody inside the home, or somebody breaks some items and maybe even walks out with something. None of those instances are burglaries, unless certain elements are established, because the person was invited into the home. So, you don't have the unlawful entry into the home. You have maybe a crime that happened inside, which would be no different really than if it happened outside. A battery, a theft, a criminal mischief. So, what a person can however, a homeowner can remove that person's invitation to enter. That has to be announced, “Hey, you’re no longer welcome here. You need to leave.” Then if a crime is committed, then potentially the state can establish a burglary charge.

But burglaries can be pretty serious because they carry pretty stiff sentences. Like the robbery charges they elevate depending upon how the crime is committed, and whether or not a weapon is used. If, during the course of committing a burglary, a person is armed, well then you end up getting yourself in a situation where you have a life felony. And that is obviously the ultimate sentence you can get, aside from capital punishment of death cases, life imprisonment. So, if a person enters a home with a firearm, or with a deadly weapon like a knife, or a billy club, that is punishable by life. The other thing that makes it punishable by life is if someone breaks into a home, and at some point during that entry to the home there’s someone inside the house, and that person gets hit, or there's a threat to hurt that person that is punished much more severely. And that's punishable by life felony. So, once there's a person inside the home things kind of elevate a little bit especially if there's some threat to be made.

Now, the unique that I have seen, as both a prosecutor and as a defense lawyer, what happens a lot, and what makes what seem like very insignificant crimes in the grand scheme of things very serious are these road rage type cases. These are the cases where somebody determines that somebody's driving wasn't courteous, or wasn't proper. At some point some guy gets out of his car, and walks over to the other person, and maybe punches him while he’s seated inside of his car. Well, that could be two things. That could be a battery – hitting somebody. That could be a trespass and a battery. Meaning once the hand crosses the threshold of the window the car. Or, that could be a punishable by life first degree burglary. Because it's a burglary of a conveyance, it’s the unauthorized entry into the car, and there's an intent to commit a crime inside. And that intent to commit a crime happens to be during the course of committing that, is an assault or battery. There have been a lot of cases with some famous folks who have been involved in situations like that. And it's one of those things that happens to a lot of people. It’s that one moment in life that somebody maybe loses composure. They end up doing what in all cases would be something punishable by probation. They end up committing a crime that's has a very severe punishment - a minimum amount of time in Department of Corrections- up to a maximum of life.

B: You mentioned that there is a difference between home and also property or business.

M: Correct.

B: I was teenager once. I didn't do it, but a lot of people will go into the store, grab a case of beer, and run out. But you said that they had to prove that they had intent to do that I guess beforehand.

M: There's more than that. Because one of the essential parts to prove a burglary is that the person entered unlawfully. So, when you enter a business, obviously everyone is invited to enter a business. So,   that's why when a person walks into a business during regular hours and steals a case of beer – that’s a theft. That’s not a burglary.

B: Okay. That would be under the robbery sudden snatching?

M: It wouldn’t even be under that. It’s a theft because unless the attendant is the person you're stealing from, or the person behind the counter. When you walk in you steal a beer from the cooler and you’re walking out, that person may see it and realize it but you're not taking it from that person.

B: Okay.

M: If you walked in and you took something that was on the attendant, like you picked his pocket, and he turned around and saw you, that might change things. So, the way you transition that, what we're just talking about, from a theft to a burglary, you have to break into the store in the middle of the night when the store’s closed, and not open it to the public.

There is another scenario, where if you're in a place that’s open to the public, but you cross the threshold and go into an area that's closed off. For instance, where you see a door that says “Employees Only”, if you open that door, and the section of the store, the State might be able to establish the elements needed to prove that you entered somewhere unlawfully that you had no invitation to enter. And you took something from there, and that would be a burglary.

B: This isn’t necessarily under burglary, but you know, how you see the people that walk in and they act like they have a gun in their pocket.

M: That’s a robbery.

B: Okay, and they don't necessarily have a gun, but that's with force or threat. Correct?

M: Correct. That would be a second-degree robbery, unless they can prove, here's a unique thing about that, in the end that's going to be a jury question. I can tell you that if a guy walks in, and he has his hand in his pocket of his sweatshirt or something like that, and makes it look as if it's a firearm. If that person gets arrested later, let’s say a day later, the testimony is going to be, the attendant is going to say, “I thought I saw a gun.” And that's going to be the evidence. So, obviously a good defense lawyer is going to hone in on “Can they prove that this person was armed?” Because you've just taken a second degree felony and made it a punishable by life felony. But, the jury’s the one that’s going to decide whether the person was armed or not. Just because they don't find a weapon, doesn't mean a prosecutor might not try to convict that person of an armed robbery.

B: Anything else on burglary charges Mike?

M: That pretty much covers the general course of burglaries. There is this element of a burglary that involves, kind of a robbery. And that’s a home invasion robbery. That's when a person breaks into the house and ends up robbing someone using force or threat of force to take something from that person. That is kind of its own unique crime, and that kind of has the same levels if a person uses a firearm or other deadly weapon he can he commits a felony of the first degree punishable by life. If he commits a home invasion robbery, and carries a weapon, he commits a first-degree felony which is not punishable by life, but punishable by 30 years. With no weapon it’s simply a felony of the first degree, again punishable by 30 years in prison.

B: We've got to two more podcasts that we’re going to be recording here, and that will be over property crimes and stolen cars. This is the Tampa burglary charges defense lawyer Mike Kenny at Bauer, Crider, and Parry. Join us for our next edition of floridadefense.com podcast.