In the robbery vs burglary comparison, the difference is what the prosecutor must prove. Burglary is unlawful entry or remaining with intent to commit a crime inside, so nothing has to be stolen. Robbery is theft plus force or fear against a person, and a weapon usually raises the grade rather than creating the crime.
The label on a charging paper is shorthand. Behind it is a list of elements, and the prosecutor has to prove each one. Two results surprise many people reading that paper for the first time. Someone can face a burglary charge when nothing is missing. Someone can face a robbery charge when no weapon was involved.
This guide uses the statutes of California, Texas, New York and Florida, along with the federal bank statute and two Illinois store cases. Those are examples, not a national rule. The law of the state that brought the charge controls, and several U.S. Supreme Court cases below interpret a federal sentencing law rather than the elements of any state charge.
Robbery, burglary and theft compared
| Charge | Core act | Required intent | Must property be taken? | Must a person be confronted? | What raises the grade | Example statutes | | --- | --- | --- | --- | --- | --- | --- | | Larceny or theft | Taking, obtaining or using property without right | Intent to deprive the owner or appropriate the property | Generally yes, though Florida also reaches endeavoring to obtain or use it | No | Value, and in New York and California, taking from the person | CA 487; TX 31.03; NY 155.05; FL 812.014 | | Burglary | Unlawful entry, and in some statutes unlawful remaining | Intent to commit a crime inside, with the target crime set by each statute | No | No | Type of place, occupancy, assault or battery, arming (varies by state) | CA 459; TX 30.02; NY 140.20; FL 810.02 | | Robbery | Theft or a taking, plus force or fear | The intent tied to the underlying theft | California and Florida speak of a taking; Texas also reaches attempted theft | Yes | Weapon, injury and other aggravators (varies by state) | CA 211; TX 29.02; NY 160.00; FL 812.13 |
Theft: taking property with intent to deprive
Theft is the base offense. In these four states, the theft statutes have no entry element and no force element.
New York says a person commits larceny when, "with intent to deprive another of property" or to appropriate it, the person "wrongfully takes, obtains or withholds" it from an owner. Texas covers someone who "unlawfully appropriates property with intent to deprive the owner of property." Florida covers knowingly obtaining or using property, or endeavoring to, with intent "either temporarily or permanently" to deprive or appropriate.
That intent language can matter. Florida's statute expressly includes temporary deprivation. Texas defines deprive to cover permanent withholding, or withholding long enough that most of the property's value or use is lost.
Value usually separates a lower charge from a higher one, although each state also has triggers that do not depend on value:
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California: grand theft above $950.
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New York: grand larceny in the fourth degree, a class E felony, when value "exceeds one thousand dollars." Petit larceny is a class A misdemeanor.
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Florida: third-degree grand theft starts at $750. First-degree petit theft runs from $100 to under $750.
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Texas: Class C under $100, Class B from $100 to under $750, Class A from $750 to under $2,500, and a state jail felony from $2,500 to under $30,000.
Taking something directly from a person does not automatically make it robbery. New York treats it as grand larceny when property, "regardless of its nature and value, is taken from the person of another." California makes it grand theft "When the property is taken from the person of another." A pickpocket-type taking can therefore be elevated theft with no force involved.
Burglary: why nothing has to be stolen
Burglary focuses on the entry and the intent, not on what left the building. Taylor v. United States, a 1990 case under the federal Armed Career Criminal Act (ACCA), defined generic burglary as "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Taylor described the older common-law version as "a breaking and entering of a dwelling at night, with intent to commit a felony." The modern federal definition drops breaking, dwelling and night.
The state statutes differ on which intended crime counts:
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California: Penal Code 459 covers entering a listed structure "with intent to commit grand or petit larceny or any felony."
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Texas: Penal Code 30.02 requires entry or remaining without the owner's effective consent, tied to a felony, theft or an assault.
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New York: Penal Law 140.20 covers someone who "knowingly enters or remains unlawfully in a building" "with intent to commit a crime therein." Any crime qualifies. This base charge is a class D felony.
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Florida: Section 810.02, for offenses after July 1, 2001, covers entering a dwelling, structure or conveyance "with the intent to commit an offense therein," subject to exceptions covered below.
A burglary-type case need not involve theft at all. In Quarles v. United States, the prior Michigan conviction arose from chasing an ex-girlfriend who had taken refuge in a nearby apartment.
Entry can also be slight. In Texas, "enter" means intruding "any part of the body" or "any physical object connected with the body."
Grades turn largely on the place. California makes burglary of an inhabited dwelling first degree, and "All other kinds of burglary are of the second degree." Under section 461, first degree carries 2, 4 or 6 years in state prison, while second degree carries county jail for up to one year or imprisonment under section 1170(h). Texas starts at a state jail felony for a non-habitation building and moves to a second-degree felony for a habitation. It becomes first degree if a habitation is involved and the offense involved a felony other than felony theft. Narrower third-degree provisions also exist. Florida's degrees run from third to first depending on occupancy, assault or battery, and arming.
Disputed element: when did the intent form?
Since burglary depends on intent, timing can decide the case. The answer varies with the statute and the route charged.
Under the federal generic definition, Quarles held that "remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining." For unlawful entry, the intent must exist at the time of entry. That is an ACCA ruling and does not rewrite a state statute.
Texas shows why the subdivision on the charging paper matters. Section 30.02 has three routes:
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(a)(1): entering a habitation or a building not open to the public with intent to commit a felony, theft or an assault.
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(a)(2): remaining concealed with that intent.
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(a)(3): entering and committing or attempting a felony, theft or an assault.
Route (a)(3) has no intent-at-entry language, so an argument aimed at intent on the way in fits the first route better than the third.
Florida reaches some cases where the entry itself was licensed. It covers remaining surreptitiously with intent, remaining after permission is withdrawn with intent, and remaining to commit or attempt a forcible felony.
Accomplices raise a separate question. In California, People v. Montoya held that an aider and abettor can be liable if their intent was formed "prior to the time the perpetrator finally departed from the structure." That rule is limited to aider-and-abettor liability and does not extend to the person who entered.
Disputed element: was the entry unlawful?
Stores are where burglary law differs most across state lines. Picture someone who walks into an open store during business hours planning to take a low-value item.
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California: Penal Code 459.5 defines shoplifting as "entering a commercial establishment with intent to commit larceny" while it is open during regular business hours, where the value "does not exceed nine hundred fifty dollars ($950)." Shoplifting is generally a misdemeanor, with an exception for certain priors. "Any other entry into a commercial establishment with intent to commit larceny is burglary." The statute also says, "No person who is charged with shoplifting may also be charged with burglary or theft of the same property."
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New York: Under Penal Law 140.00(5), someone who, "regardless of his intent," enters premises open to the public does so with license and privilege, unless the person defies a lawful order personally communicated by the owner or another authorized person.
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Florida: The entry provision excludes premises open to the public, as well as a defendant who was licensed or invited. The remaining provisions above are separate.
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Texas: Route (a)(1) applies to a habitation or a building not open to the public.
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Illinois: Two state supreme court decisions draw the line. In People v. Bradford, a 2016 case, the court held that a person "commits burglary by remaining in a public place only where he exceeds his physical authority to be on the premises." The Walmart shoplifter in that case stayed in public areas during business hours, and the burglary conviction was reversed. In People v. Johnson, a 2019 case, the court kept burglary by entry alive: "An entry with intent to commit a theft cannot be said to be within the authority granted patrons." Johnson said Bradford "did not question" that rule.
The same trip to a store can therefore produce very different charging questions depending on the state, the value, the hours and the theory of entry. In an Illinois case, for example, the difference between remaining and entering can decide whether a burglary count survives.
Robbery: theft plus force or fear
Robbery adds a person to the theft equation. The four state definitions use different words:
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California: Section 211 describes "the felonious taking of personal property in the possession of another," "from his person or immediate presence, and against his will, accomplished by means of force or fear."
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Florida: Section 812.13(1) covers a taking from the person or custody of another "when in the course of the taking there is the use of force, violence, assault, or putting in fear."
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Texas: Section 29.02 applies when, in the course of theft, a person "intentionally, knowingly, or recklessly causes bodily injury to another" or "intentionally or knowingly threatens or places another in fear of imminent bodily injury or death."
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New York: Section 160.00 defines forcible stealing as using or threatening immediate physical force during a larceny to overcome resistance, retain the property, or compel delivery.
None of these base definitions makes a weapon an element. New York's third-degree robbery requires that a person "forcibly steals property." It is a class D felony with no weapon or injury required.
Federal bank cases work similarly. 18 U.S.C. 2113(a) reaches a taking "by force and violence, or by intimidation," with a maximum of 20 years. In United States v. Gilmore, the Sixth Circuit said "a verbal or nonverbal hint of a weapon is not a necessary ingredient of intimidation under § 2113(a)." It added, "Demands for money amount to intimidation because they carry with them an implicit threat." That is Sixth Circuit law, so its reach outside that circuit should not be assumed.
Where force begins, and why the getaway counts
The line between theft and robbery often comes down to how much force was used and when. In Stokeling v. United States, a 5-4 decision from 2019, the Court said of the common law: "But the crime was larceny, not robbery, if the thief did not have to overcome such resistance."
Stokeling cited Florida cases that mark the line. Peeling back a victim's fingers to take money is robbery (Sanders). But "a defendant who merely snatches money from the victim's hand and runs away has not committed robbery" (Goldsmith). The dissent quoted a case called McCloud for a broader statement: "Any degree of force suffices to convert larceny into a robbery."
Florida also has a middle tier. Robbery by sudden snatching is a taking from the victim's person when the victim is or becomes aware of it. It requires no force beyond what is needed for the taking, no resistance and no injury. It is a third-degree felony without a firearm or deadly weapon and second degree with one. The word robbery appears in the name, but the elements differ from section 812.13, so anyone charged in Florida should check which section is cited.
Timing matters too, because a charge can move from theft to robbery after the property is already in hand:
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Texas: Section 29.01 defines "in the course of committing theft" to reach attempts and "immediate flight after the attempt or commission of theft."
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Florida: An act is in the course of the taking if it occurs before, during or after the taking and they "constitute a continuous series of acts or events."
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New York: Section 160.00 covers force used to retain the property right after the taking.
In those states, a confrontation during a getaway can be the fact that turns a theft case into a robbery case. The disputed questions then become what happened during that encounter, and how closely it was connected to the taking.
What a weapon changes
In these statutes, a weapon mainly changes the grade and the exposure.
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Florida: Robbery with no firearm, deadly weapon or other weapon is a second-degree felony. With a weapon, it is first degree. With a firearm or deadly weapon, it is first degree punishable by up to life.
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Texas: Robbery is second degree. Aggravated robbery is first degree if the person "uses or exhibits a deadly weapon," causes serious bodily injury, or causes injury to or threatens someone who is 65 or older or disabled. A weapon is one route, not the only one.
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New York: Second-degree robbery, class C, applies when a person is "aided by another person actually present," causes physical injury, displays what appears to be a firearm, or the property is a motor vehicle. First-degree robbery, class B, covers serious physical injury, being armed with a deadly weapon, using or threatening a dangerous instrument, or displaying what appears to be a firearm.
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California: Section 213 sets second-degree robbery at 2, 3 or 5 years. First degree is 3, 4 or 6 years, or 3, 6 or 9 years for the in-concert dwelling case.
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Federal: Section 2113(d), for assault or endangering life with a dangerous weapon or device during a bank offense, carries up to 25 years.
New York's language shows why a real gun may not be the deciding issue. An unloaded or inoperable firearm is an affirmative defense only to the first-degree display subdivision. It does not bar conviction of second- or third-degree robbery.
Why the distinction lasts beyond this case
The elements can shape what a jury may consider. In Carter v. United States, decided 5-4 in 2000, the defendant wore a ski mask, pushed a customer, went over a counter and took nearly $16,000, then argued that no force or intimidation was used. The defense wanted a jury instruction on bank larceny under section 2113(b) as a lesser offense of section 2113(a). The Court said no. A lesser offense's elements must be "a subset of the elements of the charged offense," and subsection (b) adds intent to steal, carrying away and value. That ruling covers the federal bank statute only, but the penalty gap is wide: 2113(b) carries up to 10 years over $1,000 and up to 1 year at $1,000 or less, compared with up to 20 years under 2113(a).
A conviction can also matter in a later federal case. Under 18 U.S.C. 924(e), a person convicted under section 922(g) with three prior violent felonies or serious drug offenses faces a minimum of 15 years. "Violent felony" lists burglary and covers offenses with force as an element. Stokeling held that this elements clause "encompasses a robbery offense that requires the defendant to overcome the victim's resistance." Taylor said federal burglary is "independent of the labels employed by the various States' criminal codes," so a state burglary label does not settle the question either way.
Questions to ask about your charging paper
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Which statute is cited, and is it a state or federal charge?
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Which subdivision or route is charged? In Texas burglary or New York robbery, that can change what must be proved.
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In a burglary case, what crime was supposedly intended inside, and does the statute cover that crime?
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What evidence is offered to prove intent, and at what moment does the state say it formed?
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Was the place open to the public? Was the person licensed or invited, or told to leave by someone with authority?
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In a theft case, what value is claimed, and does a non-value trigger apply?
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In a robbery case, what exact force, threat or fear is described, and did it happen before, during or after the taking?
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Is a weapon claimed? If so, does the charge require a real weapon or something that appeared to be one?
Bring those questions to your lawyer early. The answers show which element is truly in dispute, and that can matter more than the name of the charge.
Related reading
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A Second DUI While the First Is Pending Can Now Mean One Felony in Oklahoma
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Which Past Acts Can Oklahoma Prosecutors Now Show a Domestic Violence Jury?
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About 3 in 10 DUI Arrests Became Reckless Driving Charges in Two Florida Counties
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Felony Theft Amount by State and How Value Decides Your Charge
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Inside an Embezzlement Case, From the Employer's Audit to Restitution
Sources
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U.S. Supreme Court: Taylor v. United States; Quarles v. United States; Stokeling v. United States; Carter v. United States
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Federal law: 18 U.S.C. 2113; 18 U.S.C. 924; United States v. Gilmore (6th Cir. 2002)
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California: Penal Code 211, 213, 459, 459.5, 460, 461, 487; People v. Montoya
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Texas: Penal Code Chapter 29, Chapter 30, Chapter 31
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New York: Penal Law 140.00, 140.20, 155.05, 155.25, 155.30, 160.00, 160.05, 160.10, 160.15
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Illinois: People v. Bradford; Illinois State Bar Association summary of Bradford; People v. Johnson
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