In Georgia, a person commits burglary by entering or remaining in a structure without authorization and with intent to commit a felony or theft inside. The penalties for burglary depend on the circumstances of the crime. A home invasion carries the harshest penalties and can be punished by up to life imprisonment. Georgia also criminalizes criminal trespass (going onto someone else’s property without permission), although it's a less serious crime than burglary.
Traditionally, the law defined burglary as breaking and entering into a home at night with the intent to commit a felony inside. Today, Georgia law—along with many other states—has done away with most of these requirements.
Under current law, the elements essential to burglary include (1) unlawfully entering or remaining in a protected structure (2) with intent to commit a crime.
(Ga. Code §§ 16-7-1, 16-7-5 (2020).)
Burglary statutes protect more than homes. Protected structures include buildings, structures, vehicles, watercraft, and aircraft. The protected structure can be occupied, unoccupied, or even vacant. So, for example, a person who goes into a vacant store intending to steal copper pipes could be convicted of burglary.
An unlawful entry does not require force or a physical breaking to constitute burglary. A person who pushes open an unlocked window or door commits an unlawful entry. Unlawful entry also includes going into a portion of a building that is generally closed to the public, such as an employee breakroom.
Remaining unlawfully might occur when someone has been invited into the premises (say a store or party), but the person stays after the invitation is revoked (asked to leave the party) or expired (store closed). The intent to remain doesn’t need to occur at the entry, just some point after entering.
The crime of burglary occurs as soon as the defendant unlawfully enters or remains in the structure with the intent to commit a theft or some other crime, even if the intended crime or theft never occurs. Say a person sneaks into a home, but before he can take anything, the homeowner returns and the person flees. Despite not stealing anything, the person still committed the crime of burglary. If the theft or other crime is completed, additional charges can be filed. Intent to commit a crime can also be formed after unlawfully entering the premises. (Dillard v. State, 753 S.E.2d 772 (Ga. App. 2013).)
A prosecutor generally proves a defendant’s illicit intention through circumstantial evidence. Unless the defendant confesses, we can’t know what was going in the defendant’s mind. For instance, a jury could find beyond a reasonable doubt that a gunman went inside another’s home intending to commit a crime based on the homeowner's testimony that she came home to find an armed person rifling through her possessions.
Georgia’s penalties for burglary vary depending on the type of building involved, the intended crime, and the use (or not) of force. Burglary is punished more severely (as a home invasion) if a "dwelling" and force are involved.
The law defines a dwelling as any building, structure, or vehicle (including RVs or houseboats) designed or intended for residential use. Even if a house is only used occasionally for residential use, such as a vacation home, it can still be considered a dwelling. And a forcible offense means a felony or misdemeanor that involves the use or threat of physical force or violence against any person (such as assault, kidnapping, or robbery).
Home invasion carries the harshest penalties and applies when the offender (1) enters an occupied dwelling where someone is present (2) with intent to commit a forcible offense and (3) while in possession of a weapon that could result in serious bodily injury. To be convicted, the offender must have a weapon before entering the dwelling. Picking up a knife after entering the house will not satisfy this element.
Second-degree home invasion. A person commits second-degree home invasion when the offender intends to commit a forcible misdemeanor (like simple assault). Second-degree home invasion carries five to 20 years in prison and up to $100,000 in fines.
First-degree home invasion. Home invasion increases to a first-degree offense when the offender intends to commit a forcible felony (such as sexual assault or aggravated assault). A person convicted of first-degree home invasion faces up to life imprisonment and up to $100,000 in fines. The minimum sentence is a 10-year prison sentence.
(Ga. Code § 16-1-3; Mahone v. State, 823 S.E.2d 813 (Ga. App. 2019).)
Burglaries that don’t fall under the definition home invasion are classified into two degrees. First-degree burglary protects structures designed for use as dwellings, and second-degree burglary protects all other structures.
Second-degree burglary. A person commits second-degree burglary by entering or remaining in any building, structure, railroad car, watercraft, or aircraft (that is not a dwelling) with intent to commit a felony or theft. The penalty ranges from one to five years’ imprisonment for a first offense and one to eight years’ imprisonment for a repeat offense.
First-degree burglary. Burglary rises to a first-degree offense when the person enters or remains in a dwelling with intent to commit a felony or theft. A person convicted of first-degree burglary faces one to 20 years in prison. A second conviction carries a two-year minimum sentence, and any subsequent conviction carries a minimum of five years and a maximum of 25 years in prison.
(Ga. Code § 16-8-18 (2020).)
In Georgia, a person also faces felony penalties for being in possession of any tool, explosive, or another object normally used to commit burglary or theft and intending to use the tool for that purpose. Under this section, a locksmith who owns lock picks has not committed a crime, but a person who has a lock pick in order to break into someone’s house and steal things could be convicted of possession of burglary tools. If convicted, the person could spend one to five years in prison. (Ga. Code § 16-7-20 (2020).)
If a person knowingly enters or remains on another’s land, property, or vehicle without permission for an unlawful purpose (not amounting to theft or a felony), the person commits criminal trespass rather than burglary. It’s also criminal trespass to enter or remain on another’s land or property after being informed not to or once asked to leave. Criminal trespass is a misdemeanor and can result in up to one year in jail and a fine up to $1,000. (Ga. Code §§ 16-7-21, 17-10-3 (2020).)
If you are charged with burglary or trespass, you should consult with a Georgia criminal defense attorney. An attorney can help you understand the charges against you and how to present the strongest possible defense.