Burglary, Home Invasions, and Criminal Trespass in Georgia

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 life imprisonment.

This article will review the definitions and penalties for the different degrees of home invasion and burglary, as well as for the related offenses of criminal trespass and possession of burglar tools.

How Are Burglary and Home Invasion Defined in Georgia?

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 (2) a protected structure (3) with intent to commit a crime inside.

Unlawfully Entering or Remaining

A person can commit burglary through any unlawful entry. It doesn't need to involve a physical breaking or force. Someone 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 into a store or to a party), but the person stays after the invitation is revoked (such as being asked to leave the party) or expires (such as the store closing). The intent to remain doesn't need to occur at the entry, just some point after entering.

Protected Structures

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.

Intent to Commit a Crime

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.

(Ga. Code §§ 16-7-1, 16-7-5 (2022).)

What Are the Penalties for Home Invasion in Georgia?

A person commits the crime of home invasion by:

• entering an occupied dwelling where someone is present
• with the intent of committing a forcible offense, and
• while in possession of a weapon that could result in serious bodily injury.

Dwelling. 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.

Forcible offense. 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).

The difference between facing first-degree and second-degree home invasion charges hinges on the intended forcible offense.

Second-Degree Home Invasion Charges

Second-degree home invasion charges apply when the offender intends to commit a forcible misdemeanor (like simple assault). Second-degree home invasion carries 5 to 20 years in prison and up to $100,000 in fines.

First-Degree Home Invasion Charges

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, 16-7-5 (2022); Mahone v. State, 823 S.E.2d 813 (Ga. App. 2019).)

What Are the Penalties for Burglary in Georgia?

Burglaries that don't fall under the definition of 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 Charges

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 Charges

Burglary rises to a first-degree offense when the person enters or remains in a dwelling intending 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 2-year minimum sentence, and any subsequent conviction carries a minimum of 5 years and a maximum of 25 years in prison.

(Ga. Code § 16-7-1 (2022).)

Penalties for Possession of Burglary Tools in Georgia

In Georgia, a person also faces felony penalties for being in possession of any tool, explosive, or other 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 (2022).)

Penalties for Criminal Trespass in Georgia

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 of up to $1,000.

(Ga. Code §§ 16-7-21, 17-10-3 (2022).)

Obtaining Legal Assistance

If you are charged with burglary or trespass, consult a Georgia criminal defense attorney. An attorney can help you understand the charges against you and how to present the strongest possible defense.