I cannot interpret the answer from the statute
Criminal Defense Attorney
I believe the offense is a first degree misdemeanor. Please see FS 777,04.
If I'm incorrect I'm confident one of my colleagues will point out my error.
David R. Damore, Esq., Damore, Delgado, Romanik & Rawlins, Daytona Beach, FL, (386) 255-1400. Mr. Damore is a former Volusia and Broward County Prosecutor and an experienced criminal defense lawyer handling cases in both State and Federal Courts throughout Florida. The answer provided is for educational purposes only. It does not constitute legal advice or create an attorney-client relationship. You should consult an attorney for legal advice regarding the facts of your specific case and designed to help you with your personal needs.
It is a third degree felony.
Ms. Hill is correct, it is a third degree felony. Third degree felony burglary is an exception to the attempt statute in that it does not get lowered one level such as from a third degree felony to a first degree misdemeanor. However, you would get the benefit of being one level lower when it comes to the sentencing guidelines.
Most of the time, an attempt of a crime will drop the degree of charge one slot down. A second degree felony will become a third degree, a third degree felony will beome a first degree misdeameanot and so on.
The problem you are facing is answered in 774.04 (4)(d). Basically, when it is a burglary of a third degree (which burglary of unoccupied structure is) then the attempt of it is not charged as a lesser degree crime, and it continues to be punishable as a 3rd degree felony. I have pasted the pertinent part below.
(d) Except as otherwise provided in s. 104.091(2), s. 379.2431(1), s. 828.125(2), or s. 849.25(4), if the offense attempted, solicited, or conspired to is a:
1. Felony of the second degree;
2. Burglary that is a felony of the third degree; or
3. Felony of the third degree ranked in level 3, 4, 5, 6, 7, 8, 9, or 10 under s. 921.0022 or s. 921.0023,
the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
This is intended for educational purposes only and does not create any attorney- client relationship.
It's a third degree felony however in some cases an attempted burglary charge may be reduced to a misdemeanor trespassing. It's best to contact an attorney who can review your facts and ascertain whether it's worth contacting the State for a reduction in charges. Good luck!