Burglary is not the same as theft. Burglary is committed when someone, without the owner's consent: (1.) enters a habitation or any portion of a building not then open to the public, with intent to commit a felony, theft or an assault, or (2.) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation, or (3.) enters a building or habitation and commits or attempts to commit a felony, theft or an assault.

  • A habitation is defined as any structure or vehicle that is adapted for the overnight accommodation of persons.
  • If two or more individuals commit this offense, one individual may be guilty of burglary even though he did not personally enter the burglarized premises, if he was acting together with another person who did.
  • If the burglary alleges that the defendant entered the habitation to commit a felony, the defendant cannot be prosecuted for both the burglary and the underlying felony alleged in the burglary indictment.

The severity of the sentence for the crime of burglary depends on the structure the defendant has burglarized along with other factors relevant to sentencing, such as the defendant's past criminal record. The three most common burglary cases that result in indictments are:

Burglary of A Building

Burglary of a building is a state jail felony. It occurs when a person enters a building, which is defined as any enclosed structure intended for use or occupation as a habitation or some purpose of trade, manufacture, ornament, or use, without the effective consent of the owner, and with the intent to commit a felony, theft, or assault. State jail felonies are punishable by 180 days to 2 years in a State Jail facility, and a fine not to exceed $10,000. There is no parole or good time credit in a State Jail facility. A person sentenced to a State Jail will do every day of his sentence.

Burglary of a building is a third degree felony if the premises are a commercial building in which a controlled substance is generally stored, like a pharmacy or hospital, and the person entered or remained concealed in the building with the intent to commit a theft of a controlled substance.

A third degree felony is punishable by no less than 2, nor more than 10 years in prison, and a fine not to exceed $10,000.

Burglary of a Habitation

Burglary of a habitation occurs when a person enters a habitation, without the effective consent of the owner, that is not open to the public, with the intent to commit, or commits, a felony, theft, or an assault. A habitation is defined as a structure or vehicle (like an RV) that is adapted for overnight accommodation or persons. A habitation includes each separately secured or occupied portion of the structure or vehicle and each structure appurtenant to or connected with the structure or vehicle.

Burglary of a habitation is a first degree felony if the person, or any party to the offense, enters the habitation with the intent to commit a felony other than felony theft, or committed or attempted to commit a felony other than felony theft. An example would be if a person entered the habitation with the intent to commit sexual assault. A first degree felony is punishable by 5 to 99 years, or Life, in prison and a fine not to exceed $10,000.

Burglary of a Vehicle

Burglary of a vehicle is a class A misdemeanor and is punishable by up to 1 year in jail, provided the vehicle is not used as a habitation, such as an RV. In that case, the crime is considered burglary of a habitation and is punishable as a second degree felony.

Possible Defenses in a Burglary Case

Every defense depends on the facts and evidence in each individual case. It is imperative that you hire a defense attorney that is experienced in litigating these types of cases. When hiring a lawyer, ask them about their experience, and particularly their experience trying cases to a jury.

In these cases, you should look at whether the person charged had a legal right to be on the premises of a habitation or building, or in the vehicle. You always want to investigate and determine what your client's intent was in entering the habitation, building, or vehicle. If there is no intent to commit a theft, felony, or assault, it could be argued that the only offense committed was misdemeanor trespass. Additionally, the affirmative defenses of necessity and mistake of law or fact should be explored.

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If you or a loved one has been charged and arrested for the crime of burglary, give the Law Offices of Matt Bingham a call today to schedule your free professional consultation. We are ready to defend you.

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