Burglary

Burglary

There are several types of burglary.  The first, which is covered in O.C.G.A. § 16-7-1, is what most people think of when they hear the word “burglary.”  O.C.G.A. § 16-7-1 covers both First Degree Burglary and Second Degree Burglary.  All burglary charges are felony charges, meaning they carry a minimum sentence of one year upon conviction.  Most Georgia courts treat even a first offense as a serious charge, and you should always speak with a Georgia Criminal Defense Attorney prior to going to court on a burglary charge.

First and Second Degree Burglary

According to the statute, a person commits First Degree Burglary when he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another with the intent to commit a felony or theft inside.  Second Degree Burglary is when a person enters or remains within an occupied, unoccupied, or vacant building with the intent to commit a felony or theft inside.

The difference between First and Second Degree Burglary is a bit confusing, because the sole difference is what the property which the accused entered is primarily used for.  First Degree Burglary requires that the property be a “dwelling” of another, meaning any kind of property that another individual uses as a residence.  The law defines this broadly, stating that a dwelling is “any building, structure, or portion thereof which is designed or intended for occupancy for residential use.”  For Second Degree Burglary, the property entered need not be a dwelling.  It may be an “occupied or unoccupied, or vacant building, structure, railroad car, watercraft, or aircraft.”  However, the State still must prove that the accused had the intent to commit a felony or theft on the property when he or she entered.

One common misconception about burglary is that people believe the illegal entry onto the property must be theft-related in order to be considered a burglary.  This is incorrect.  As the law states, a person commits burglary when he or she enters either to commit a theft or for the purpose of committing some other felony.  This means that, for example, an individual who goes onto another person’s property for the purpose of threatening another person can be charged with burglary.

Smash-and-Grab Burglary

Another type of burglary, known as “smash-and-grab” burglary, is covered by O.C.G.A. § 16-7-2.  It deals with retail establishments rather than dwelling places.  Under O.C.G.A. § 16-7-2 a person commits “smash-and-grab” burglary when he or she “intentionally and without authority enters a retail establishment with the intent to commit a theft and causes damage in excess of $500 to such establishment without the owner’s consent.”

Burglary Sentences

Offense Sentence Required by Law
First Degree Burglary – First Offense At least 1 year but not more than 20 years
First Degree Burglary – Second Offense At least 2 years but not more than 20 years
First Degree Burglary – Third and Subsequent Offenses At least 5 years but not more than 25 years*

*For fourth and subsequent convictions, sentences may not be suspended, probated, deferred, or withheld.  That means that some period of incarceration is required by law.

Second Degree Burglary – First Offense At least 1 year but not more than 5 years
Second Degree Burglary – Second and Subsequent Offenses At least 1 year but not more than 8 years*

*For fourth and subsequent convictions, sentences may not be suspended, probated, deferred, or withheld.  That means that some period of incarceration is required by law.

Smash and Grab Burglary At least 2 years but not more than 20 years and/or

A fine of not more than $100,000

Most judges take burglary very seriously, and many are willing to impose prison sentences even for first burglary convictions.  You should not assume, however, that your conviction is guaranteed simply because you have been arrested for burglary.  There are valid defenses in burglary cases, which you should discuss with a Georgia Criminal Defense Attorney with experience handling burglary cases.  One difficulty that the State faces when prosecuting a burglary charge is that they have to prove that an accused person entered a property with the intent to commit a theft or other felony.  Intent can be inferred based on surrounding circumstances, but a skilled Georgia Criminal Defense Attorney may, for example, seek to prove that the accused person was actually on the property for some legally valid reason.

Burglary cases can be complicated and require an in-depth investigation.  If you have been arrested or charged with a burglary offense, do not wait until you are called into court.  Contact me today.

Property Crime Practice Areas

  • Criminal Trespass
  • Burglary
  • Criminal Damage to Property
  • Interference with Government Property
  • Arson
  • Interference with Electronic Monitoring Device
  • Entering Auto

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