SWINDLE COLUMN: Breaking down Georgia’s burglary laws

Published 10:30 am Tuesday, February 22, 2022

Of all the criminal acts in Georgia, burglary is one of the most dangerous to the homeowner, community, and the perpetrator. 

Burglary in Georgia is separated into 1st and 2nd Degree:

1st Degree – This offense is completed when a person enters or remains within an occupied, unoccupied, or vacant dwelling house of another or any building, railroad car, watercraft, aircraft, or other such structure for use as the dwelling of another without authority and with the intent to commit a felony or theft therein.

A person found guilty of 1st degree burglary will be convicted of a felony and will be punished by a sentence of one to twenty years.

2nd Degree – A person commits 2nd degree burglary when he or she enters or remains in an occupied, unoccupied, or vacant building, structure, vehicle, railroad car, watercraft, or aircraft without authority and with the intent to commit a felony or theft therein.

The punishment for a second-degree burglary conviction is a sentence for a period from one to eight years.

The difference between the two is whether or not the structure was intended to be a dwelling or not.

A person can be convicted of burglary if he or she obtained permission to enter into a house through fraud, deceit or false pretenses.

For example, I argued a case before The Supreme Court of Georgia when my client allegedly posed as a potential homebuyer to get inside a house and steal from the home. The Court found that he was guilty of burglary even though he had permission to enter the home because that permission was obtained by fraud.

Another aspect of burglary that causes confusion is the incorrect belief that the only crime that can be associated with burglary is stealing. A person can be convicted of burglary if he or she had the intention to commit a felony even if personal property is left untouched.

There are several defenses one can use when accused of burglary.  Three of these are:

1.  Consent to Enter Property – Regarding the first element, breaking and entering, consent from the homeowner to enter the property could help to lead to a not guilty verdict. 

2.  Breaking but no Entering onto Property – Breaking a window of a door and reaching inside to attempt to open the door does not constitute an entry for the purposes of proving a burglary. However, this would constitute the crime of criminal attempt burglary.

3.  Lack of Evidence –  The burden in on the government to prove a defendant guilty beyond a reasonable doubt in a criminal jury trial.  If they lack the evidence to overcome that high burden, the jury must find the defendant not guilty.

However, the commonly mentioned ideas below ARE NOT defenses in a burglary case:

1.  It was an unoccupied building – Even entering a house under construction qualifies as a building and a defendant could still be convicted of burglary.

2.  Nothing was stolen: – As mentioned above, even though a person does not steal anything, he or she could still be convicted of burglary. He or she completes the crime when an entry without authority and with intent to commit theft takes place.

3.  The door was open – Forced entry is not required. It is enough for a person to enter a building without authority or permission.

Burglaries take security away from victims. Burglaries can spread fear throughout communities. Burglaries land some perpetrators in prison for many years.

But, in Georgia, the person who may in the most danger during a 1st Degree Burglary is the perpetrator. If a burglar happens upon a homeowner awake at night armed with a shotgun, the burglar may not need to be concerned with being arrested.   

All gun owners need to be familiar with the law on self-defense, defense of others, and the Castle Doctrine.