In South Carolina, burglary is the word used to describe three explicit offenses that relate to the unlawful entry of residences or buildings. If an individual is accused of unlawfully entering a building with the intent to commit a crime while inside, then that person may be charged and prosecuted for committing the crime of burglary, depending on the facts alleged.
Burglary is comprised of three explicit categories: burglary in the first degree; burglary in the second degree (non-violent and violent); and burglary in the third degree. Any offense depends on the type of building entered and the existence of aggravating facts and circumstances.
What are the Basic Elements of Burglary?
Burglary, at the core, requires that an alleged intruder unlawfully enter a building or residence with the intent to commit a crime once inside that building or dwelling. To sustain a conviction, the solicitor must demonstrate that a defendant: 1) entered a building or residence; 2) without approval; and 3) with the intent, at the time of entry, to commit a crime once inside.
What is Burglary in the First Degree?
South Carolina Code Section 16-11-311(A) provides the elements of and punishment for burglary in the first degree. To carry out the crime of burglary in the first degree, a person must:
- Enter a dwelling;
- Without consent;
- With the intent to carry our a crime inside the dwelling; and
- Provoke the crime by committing one of the following:
- Using a weapon during the crime by either:
- Being armed or arming himself with a deadly weapon;
- Causing injury to a non-participant in the crime;
- Using or threatening the use of a dangerous instrument; or
- Entering the dwelling during the nighttime; or
- Having at least two prior burglary or housebreaking convictions.
How is Burglary in the First Degree Punished?
South Carolina Code Section 16-11-311(B) states that burglary in the first degree is punishable by a minimum sentence of fifteen years’ incarceration and a maximum of life in prison. The code defines “life” to mean incarceration until death. It should also be indicated that the minimum fifteen years cannot be suspended, so a conviction under this law will conclude in at least fifteen years spent in the department of corrections.
What is Burglary in the Second Degree (Violent)?
In South Carolina, burglary in the second degree is split in to two categories: non-violent and violent. This designation affects the amount and quality of a convicted person’s imprisonment at the department of corrections and can result in ancillary consequences, including state fines for firearm possession.
Burglary in the second degree (violent) is administered by South Carolina Code Section 16-11-312(B). To commit burglary in the second degree (violent) an individual must:
- Enter a building;
- Without consent;
- With the intent to carry out a crime inside the building; and
- Provoke the crime by carrying out one of the following:
- Using a weapon during the crime by either:
- Being armed or arming himself with a deadly weapon;
- Causing injury to a non-participant in the crime;
- Using or threatening the use of a dangerous weapon; or
- Entering the building during the nighttime; or
- Having at least two prior burglary or housebreaking convictions.
The type of structure entered is he difference between burglary second degree (violent) and burglary first degree. First degree burglary is restricted to cases where the individual enters a “dwelling,” defined as any structure in which an individual sleeps on a consistent basis and includes unoccupied residences so long as the occupants intend to return and reoccupy the premises. Second degree burglary (violent) encompasses entry of all buildings other than dwellings when one of the aggravating factors exists.
How is Burglary in the Second Degree Punished?
South Carolina Code Section 16-11-312(C)(2) provides that burglary second degree (violent) is punishable by imprisonment of up to fifteen years. The penalty statute also mandates that a person convicted of violating 16-11-312(B) must serve at least one-third of any prison term before becoming parole eligible.
What is Burglary in the Second Degree (Non-Violent)?
Burglary in the second degree (non-violent) is governed by South Carolina Code Section 16-11-312(A). The elements of burglary second degree (non-violent) consist of:
- Entering a dwelling;
- Without consent; and
- With the intent to carry out a crime once inside.
It should be indicated that burglary second degree (non-violent) considers the unlawful entry of a dwelling with the intent to carry out a crime once inside, so long as none of the aggravating aspects are present.
How is Burglary in the Second Degree (Non-Violent) Punished?
South Carolina Code Section 16-11-312(C)(1) punishes a conviction of burglary second degree (non-violent) by asserting a sentence of up to ten years’ imprisonment.
What is Burglary in the Third Degree?
Burglary in the third degree is the entry of a building without permission and with the intent to carry out a crime once inside. This offense considers the unlawful entry of any building other than a dwelling, so long as the none of the aggravating aspects are present. Burglary in the third degree is catalogued by South Carolina Code Section 16-11-313(A).
How is Burglary in the Third Degree Punished?
South Carolina Code Section 16-11-313(B) punishes a conviction of burglary third degree with five years maximum in prison for a first offense and 10 years maximum in prison for a second offense.
The Interplay of Burglary Offenses
Each degree of burglary expands off the basic elements contained in the burglary third degree statute. Burglary second degree (non-violent) is burglary in the third degree when the entry is to a dwelling instead of a building. Burglary in the second degree (violent) is burglary in the third degree when the entry is attended by the statutorily-prescribed aggravating circumstances. Burglary in the first degree is burglary in the third degree when the entry is to a dwelling and is accompanied by the statutorily-prescribed aggravating circumstances.
This interplay is important at trial. At trial, the judge must instruct the jury on the law regarding the offense for which the defendant has been indicted. However, if there exists some fact or circumstance that indicates that the defendant may not have committed all of the elements of the indicted offense, then the judge may instruct the jury on the law of lesser-included offenses, or those offenses whose elements are encompassed in the greater, indicted offense.
As an example, a judge would have to instruct the jury on the law regarding burglary in the second degree (non-violent)if a defendant is tried for supposedly committing burglary in the first degree for allegedly breaking in to a dwelling after dark to take a television and the defense is able, through either cross examination or the introduction of testimony or evidence, to indicate that the defendant did not enter the residence at night. The jury, then, could choose to convict the defendant of the lesser-included offense. A conviction for the lesser-included offense would save the defendant from a much more severe criminal penalty, in light of the minimum mandatory sentence imposed by the burglary first degree statute,.
What do I do if I Have Been Charged with Burglary?
Call an attorney. Depending on the allegations in your case, you could be looking a potentially life-changing amount of prison time. These cases are very factually specific, so even if you do not have a defense to the underlying crime, there may exist a strong defense to the charged burglary. Dedicated SC criminal defense attorney, Michael Jeffcoat, will help you navigate the waters of your burglary charge and ensure that every legal and factual defense is identified and pursued. Please call Jeffcoat Criminal Defense Lawyers and ask to speak with one of our attorneys.
