I have both prosecuted and represented people charged with Burglary. Many times the client or client’s family will drop the word “degree”. That’s when I hear, “he’s charged with Burglary 2nd, yet this is his first offense???” The first rule is to recognize is that the different degrees of Burglary are not directly related to the number of prior convictions. In other words, a person can be charged with Burglary in the third degree, regardless of whether it is his first offense or not. However, as you read on, you will notice that a conviction of two or more prior Burglaries will “enhance” a lower charge by adding an “aggravating circumstance.”
Burglary in the first-degree is the most serious and Burglary in the third degree is the least serious. With that in mind, let’s go through the different levels of Burglary as contemplated by South Carolina law.
Burglary in General
Burglary is defined by statute as the “entering of a (building or dwelling) without consent and with intent to commit a crime therein.” While there are three different degrees of Burglary in South Carolina, there are actually five possibilities regarding what charge of Burglary is prosecuted. See 16-11-311, 312, and 313.
From the order of most serious to the least serious, those charges are:
1. Burglary in the first-degree
2. Burglary in the second degree (violent)
3. Burglary in the second degree (non-violent)
4. Burglary in the third degree (second offense)
5. Burglary in the third degree (first offense)
Burglary in the First Degree, AKA Burglary 1st
Burglary in the first-degree is codified in section 16-11-311 and is considered to be “violent” and “most serious”. The offense carries a minimum of 15 years in prison and up to life and no suspension of the mandatory minimum or probation may be given. It is one of the few offenses in South Carolina that does not involve a death that carries a life sentence.
(A) A person is guilty of Burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and either:
(1) when, in effecting entry or while in the dwelling or in immediate flight, he or another participant in the crime:
(a) is armed with a deadly weapon or explosive; or
(b) causes physical injury to a person who is not a participant in the crime; or
(c) uses or threatens the use of a dangerous instrument; or
(d) displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or
(2) the Burglary is committed by a person with a prior record of two or more convictions for Burglary or housebreaking or a combination of both; or
(3) the entering or remaining occurs in the nighttime.
(B) Burglary in the first degree is a felony punishable by life imprisonment. For purposes of this section, “life” means until death. The court, in its discretion, may sentence the defendant to a term of not less than fifteen years.
When you break down the statute, the elements of Burglary in the first-degree are:
- the entering of a dwelling (NOTICE: “Breaking” or “forced entry” is not an element.)
- without consent
- the with intent to commit a crime therein
- and the presence of at least one “aggravating circumstance”
Essentially, the Burglary of a dwelling with an aggravating circumstance is a Burglary and first-degree.
Burglary in the second degree (violent)
Violent Burglary in the second degree is codified at Section 16-11-312. The statute is set forth below.
(B) A person is guilty of Burglary in the second degree if the person enters a building without consent and with intent to commit a crime therein, and either:
(1) When, in effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:
(a) Is armed with a deadly weapon or explosive; or
(b) Causes physical injury to any person who is not a participant in the crime; or
(c) Uses or threatens the use of a dangerous instrument; or
(d) Displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or
(2) The Burglary is committed by a person with a prior record of two or more convictions for Burglary or housebreaking or a combination of both; or
(3) The entering or remaining occurs in the nighttime.
(2) [sic] Burglary in the second degree pursuant to subsection (B) is a felony punishable by imprisonment for not more than fifteen years, provided, that no person convicted of Burglary in the second degree pursuant to subsection (B) shall be eligible for parole except upon service of not less than one-third of the term of the sentence.
Violent Burglary in the second degree is much like Burglary in the first-degree except that the statute refers to a building instead of the dwelling. In other words, violent Burglary in the second degree is the Burglary of a building with an aggravating circumstance. The offense for violent Burglary in the second degree is up to 15 years in prison. The offense is also classified as “violent” and “serious”.
Burglary in the second degree (non-violent)
The other Burglary in the second degree is the “non-violent” Burglary. It is addressed in section (A) of the Burglary statute at 16-11-312.
(A) A person is guilty of Burglary in the second degree if the person enters a dwelling without consent and with intent to commit a crime therein.
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(C)(1) Burglary in the second degree pursuant to subsection (A) is a felony punishable by imprisonment for not more than ten years.
Burglary in the second degree, under this classification is the Burglary of a dwelling without an aggravating circumstance. It carries up to 10 years in prison. An example would be where someone goes into a house and steals jewelry and electronics during the daytime.
Burglary in the Third Degree
Burglary in the third degrees, is codified or by section 16-11-313. Burglary in the third degree is simply a Burglary of a building without any aggravating circumstances.
(A) A person is guilty of Burglary in the third degree if the person enters a building without consent and with intent to commit a crime therein.
Anyone charged with a crime of Burglary is facing serious penalties and therefore it is important to consult with an attorney who is well-versed in the different classifications of Burglary and understands the differences of each. Often times someone will be charged with a Burglary of a higher level where the factual allegations do not support that particular Burglary charge. An attorney reviewing your case, will be able to determine the appropriate Burglary charge given the facts that are alleged by law enforcement and the prosecution.
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