It is a non-bondable offense, meaning that should the first appearance judge find probable cause for the offense, he or she must hold you without a bond. Only an Arthur Hearing can possibly get you a bond in a burglary with an assault or battery case.
Burglary with an assault or battery is a type of burglary crime. However, the element of adding an assault or battery takes the crime from a second-degree felony to a 1st PBL.
The elements are similar to burglary in that somebody enters the dwelling of another with the intent to commit a crime therein. In the case of a burglary with an assault or battery, the crime therein may be the assault or battery.
Or, in the course of a burglary, if the accused touches, strikes, or threatens with violence a person inside the dwelling, the accused can be charged with burglary with an assault or battery.
Many other crimes (such as home-invasion robbery) can be charged as burglary with an assault or battery. If somebody enters a home with the intent of committing a sex crime, the crime may also be charged as burglary with an assault or battery.
Burglary with an assault or battery is a very serious violent felony offense. It is usual handled by veteran prosecutors who want to put offenders in prison for a long time.
Like many charges, though, burglary with an assault or battery can be overcharged. In order to prove the crime occurred, the State must prove the underlying burglary. That means that the State must prove that the accused had permission, consent, or some type of legal right to be at the house.
For instance, in a domestic violence situation, a husband may come home, enter his house, and strike his wife. While the offender would no doubt be guilty of battery, he cannot be guilty of burglary with an assault or battery because it was his house. In other words, it was not an unlawful entry into the property. His entry was lawful.
This scenario comes up frequently, but not always as cut and dried as it is stated above. What if a boyfriend and girlfriend who do not live together get into a fight? What if the and his girlfriend get into a fight inside of the girlfriend's house, and during this fight the boyfriend hits his girlfriend. Is this burglary with an assault or battery, or simply a battery?
I deal with these legal exceptions nearly every day in criminal defense practice.
A big part of my job is to persuade prosecutors that a charge does not fit a particular set of facts. In the above scenario, I would argue that while the boyfriend is guilty of a misdemeanor battery, he was an invited guest. He had permission to be in the home.
However, the State can charge a burglary when somebody "remains" on property after their invitation, consent, or license to be there has expired. In other words, if the girlfriend told her boyfriend to "Get out!" after he hit her, and he did not but proceeded to hit her again, the State could charge burglary with a battery because after his invitation expired (when the girlfriend told him to leave), he was no longer invited and was committing a burglary by remaining. Furthermore, his remaining in the home with the intent to hit her created the "crime therein" requirement for burglary.
As you can see, there are many ways to interpret a factual scenario. That is proof that there is never one side to a story. Unfortunately, the cops' side and the prosecutors' side seems to be the same.
What about your side?
I practice criminal defense in Miami-Dade and Broward. I have represented clients charged with burglary with an assault or battery and know how to properly and strategically approach such a charge.
You can get life in prison for burglary with an assault or battery. Don't mess around. If you are facing this charge, you are in desperate need of legal help.
If you or somebody you know has been charged with burglary with an assault or battery, call me today.