Burglary: Charges, Penalties, and Sentencing

The legal definition of burglary covers a broad range of conduct. Learn what conduct is considered burglary and the possible penalties involved.

By , J.D.
Updated 7/07/2022

When people think of burglary, they might think of a thief in a black outfit sneaking into someone's home in the middle of the night. While such activity definitely counts as burglary, the legal definition applies to a much broader range of activities. Though state laws differ slightly in how they categorize burglaries, it is a crime in every state and one that often comes with significant penalties, including jail or prison time.

What Is Burglary?

A person commits burglary by entering a building without permission and with the intent to commit a crime within. To prove that a burglary occurred, a prosecutor must produce evidence on the following points and convince a jury beyond a reasonable doubt on each of them.

Entering a Building or Structure

Burglary laws used to apply only when someone broke into another person's house or dwelling. Today, the law prohibits anyone from entering any structure, not just a home. Many state laws identify the types of structures that count as a building for burglary crimes. They include stores, school buildings, houseboats, and even tents or campsites. Some states also differentiate between burglary of a commercial space and burglary of a residence—punishing residential burglary more harshly. For residential burglary, the building must be a home, apartment, or some type of structure in which a person lives.

Illegal Entry

The prosecutor must also prove that the accused entered the building illegally or without permission. This generally means that the building must be either a private one or a public one (like an office building or store) that was closed to the public when the alleged burglary happened.

Illegal entry can also occur when a person enters a building open to the public during business hours but with the intent to commit a crime inside—like someone who walks into a store with the intent to steal merchandise. The reasoning is that the owner's permission to enter extends only to those who enter for legitimate purposes. This means that in many states, shoplifting can be charged as burglary. Some states, like California, no longer allow burglary charges for shoplifting (which often involves only petty theft) unless the value of the stolen merchandise exceeds a certain amount.

Even when a person enters a public building without intent to commit a crime, an illegal entry can result if they enter a locked or prohibited space within the building, such as an employee breakroom or locked office. For example, walking into a supermarket to go grocery shopping can later become an illegal entry if the person spies a wallet on a table in the employee breakroom, and enters the room to take it.

Although the crime of burglary requires entry into a building, the defendant's entire body doesn't have to enter; the crime still occurs if the defendant simply reaches into a building. In many states, the entry can occur even if no part of the defendant's body enters the building: If the defendant uses a tool to perform the illegal entry, the entry occurs once the tool penetrates the building, even if the defendant never makes it inside.

Use of Force (applicable in only some states)

Burglary in some states also involves "breaking" into the building. Although the term implies a forced entry (like picking a lock or breaking a window), any type of unlawful entry—no matter how minimal—is enough to satisfy this requirement. For example, it's enough for the accused to open a door or lift an unlocked window to satisfy the use-of-force requirement.

In fact, many states have eliminated the requirement that the defendant break in. Thus, walking freely through a store entrance, intending to steal goods, can be a burglary (see "Illegal Entry," above).

Intent to Commit a Felony or Theft

To convict someone of burglary, a prosecutor must prove that the person unlawfully entered the building with the intent to commit a felony or theft. Typically, a person convicted of burglary intends to enter the building to steal something, but it's also burglary if the person enters with intent to commit felony assault or felony property damage.

Generally, the person must intend to commit a crime before or right at the point of entry. No burglary occurs when a person enters a building without intending to commit a crime but does so later. Say a guest comes to a BBQ with no illegal plans but later decides to swipe cash he sees lying on a counter—in this case, the guest has committed theft but not burglary. Also, it's burglary when a person enters a building with the intent to steal but later changes their mind or gets caught before having a chance to commit the intended crime. It's the intent to commit a crime, not the occurrence of the crime, that counts.

Prosecutors typically prove criminal intent from the circumstances of the case. They do not have to show exactly what was in the accused person's mind at the time. For instance, a homeowner comes home to find the TV ripped off the wall and sees a person loading the TV into a van behind her house. She calls the police who track down the van and find multiple TVs, lock picks, and crowbars inside. Here, the jury would likely infer the suspect entered the house (and maybe other houses) intending to steal a TV.

Defenses to Burglary

In addition to obvious defenses like mistaken identity and alibi, a common defense to burglary is that the defendant didn't have the intent to steal or commit a felony when the entry occurred. For example, if a homeless person entered a house to get out of the cold, but then realized she was hungry and stole leftovers out of the fridge, she would not have the intent to steal when she entered the home, which is what's required for burglary.

A "mistake of fact" defense also could show that the defendant didn't have the intent to steal or commit a crime. Here's an example: Angel's new friend Slim invites him to go fishing and (falsely) says they just need to pick up his cousin's fishing gear right around the corner. Slim drives Angel to a nearby house with its garage door open and tells him to grab the fishing gear just inside the door. As it turns out, Slim didn't know who owned the house and was just trying to get Angel to steal the gear for him. In this scenario, Angel could argue he made a mistake of fact–that he honestly but mistakenly believed he had permission to take the property when he entered the garage, so he didn't enter with the intent to commit a crime.

Other possible defenses to burglary can include arguments that the defendant had permission to enter, or that the structure the defendant entered was not a building (such as a carport), though the definition of "building" varies from state to state.

Burglary Is Usually a Felony

Burglary offenses are serious crimes and are typically charged as felonies, though some states allow for misdemeanor burglary charges in certain situations. Many states divide burglary into degrees; first-degree burglary usually involves homes and dwellings, whereas second-degree burglary involves commercial buildings. Burglaries of dwellings are usually punished more severely than burglaries of other structures. Any burglary conviction comes with several possible penalties, and the sentencing options for burglary convictions differ widely among states.

Burglary Penalties Can Include Jail, Prison, or Probation

The punishment for burglary varies from state to state, but most burglary convictions carry a possible prison sentence.

Jail or prison. Burglary convictions result in a wide range of prison or jail sentences. A conviction for a felony burglary offense typically carries a sentence of more than one year in state prison. Depending on the state and the circumstances of the case, a felony burglary conviction can result in 20 years or more in prison. A misdemeanor burglary conviction can be punished by up to a year in jail.

Fines. Burglary fines can be significant. Depending on the state, a fine for burglary can be $100,000 or more for a felony conviction. Misdemeanor fines are usually less than $1,000.

Restitution. Though you can commit a burglary without taking or damaging any property, a burglary that does result in property loss or damage can also come with a restitution sentence. When a court orders you to pay restitution, you have to pay victims to compensate them for their losses—allowing them to repair or replace the damaged or lost property. Restitution is in addition to any fines the court imposes.

Probation. Probation sentences are sometimes imposed in burglary cases. A judge can sentence a person to probation either independently of a prison or jail sentence or in addition to such a sentence. When you're on probation, you must comply with all the court's conditions or you risk having to serve the original jail or prison sentence. For example, courts usually require a person on probation to regularly report to a probation officer, as well as submit to drug testing, home searches, or other conditions.

Talk to a Lawyer

Burglary is a serious charge. If you face burglary charges, consult with an experienced criminal defense attorney in your area before making decisions about your case.

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