All states have laws that prohibit going into someone else’s home or property without permission. In Georgia, it is crime, called burglary, to enter into a home, building, or vehicle with the intent to commit a crime inside. Residential burglary, sometimes called home invasion burglary, carries very stiff penalties, and can be punished by up to life imprisonment. Georgia also criminalizes trespass (going onto someone else’s property without permission), although it is a less serious crime than burglary. For general information on these crimes, see Home Invasions, Burglary: Penalties and Sentencing, and Trespassing Penalties.
Traditionally, burglary was defined as breaking and entering into a home at night with the intent to commit a felony inside. Today, Georgia law – along with that of many other states – has done away with some of these requirements. A person commits burglary by entering (or remaining) in a building or vehicle without permission and with the intent to commit a felony inside (a crime punishable by time in prison), or a theft. The building may be occupied, unoccupied, or vacant. So, for example, a person who goes into a vacant store intending to steal copper pipes could be convicted of burglary. (Ga. Code Ann. § 16-7-1.)
In order to be convicted of burglary, the defendant must enter (or remain) in the building without permission. This can include going into a portion of the building that is generally closed to the public, such as an employee break room in a store. However, a person who goes into an “open house” in a house that is for sale and steals a piece of furniture does not commit burglary (only theft), because open houses are generally open to the public.
The crime of burglary occurs as soon as the defendant enters the building or vehicle with the intent to commit theft or some other crime, even if the intended felony or theft never occurs. For example, a burglar who sneaks into a home but runs away as soon as the homeowner returns and does not take anything, has still committed the crime of burglary. Of course, if the theft or other crime is completed, then additional charges can be filed.
The defendant’s illicit intention is generally determined by the circumstances, and the prosecutor is not required to establish exactly what was going through the defendant’s head. For example, if a person comes home to find an armed gunman in her house, rifling through her things, the jury could find beyond a reasonable doubt that the gunman went into the house intending to commit a crime.
Burglary is punished more severely if the building or vehicle (such as a camper or a boat) is a dwelling. Under Georgia's law, a “dwelling” is any building, structure, or part of a building or structure that is 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. Laws against home invasion burglaries are a bit of a throwback to the traditional definition of burglary.
In Georgia, it is also a crime to possess any tool, explosive, or other object normally used in the commission of burglary, theft, or some other crime with the intent to use the tool to commit a crime. So, 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. (Ga. Code Ann. § 16-7-20.) For more information on how even everyday items can become burglar’s tools, see Burglary Tools.
In Georgia, the crime of trespass can be committed by:
(Ga. Code Ann. § 16-7-21.) For example, going onto a person’s property to engage in illegal hunting is trespass.
Burglary and possession of burglary tools are punishable by one to five years in prison. Home invasion burglary is punishable by one to 20 years in prison. Subsequent burglary convictions are punished more severely. Criminal trespass is a misdemeanor, punishable by up to 12 months in jail, a fine of up to $1,000, or both. For more information on sentencing, see Georgia Misdemeanor Crimes by Class and Sentences and Georgia Felony Crimes by Class and Sentences.
In Georgia, tools, weapons, and vehicles used to commit burglary are subject to forfeiture (seizure by the state without compensation to the owner). (Ga. Code Ann. § 16-16-2.) For more information on federal forfeiture laws, see Forfeiting Property in a Federal Criminal Case.
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.