When I started out as a prosecutor at the district attorney’s office here in Augusta, Georgia’s burglary statute was different from what it is today. Back then, burglary wasn’t divided into two degrees as it is now. However, the Legislature saw the need to make the punishment harsher for those breaking into people’s houses. At the same time, the Legislature saw the need to add some leniency to those entering non-residential buildings. I wanted to use this article to highlight these changes promulgated by the Georgia Legislature back in 2012. This week’s article will be a brief discussion of burglary in the first degree.

Under O.C.G.A. § 16-7-1(b), a person commits burglary in the first degree when that person, without authority and with the intent to commit a felony or theft therein, enters or remains within an occupied, unoccupied or vacant dwelling house of another or any building, vehicle, railroad car, watercraft, aircraft, or other structure designed for use as the dwelling of another. For the first conviction of first degree burglary, a person faces from 1 to 20 years in prison. For a second conviction under this statute, a person faces from 2 to 20 years in prison. Finally, after a third conviction, a person faces a term of imprisonment from 5 to 25 years. Upon a fourth and all subsequent convictions for burglary in any degree, adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred, or withheld. This means that for a fourth burglary and others thereafter, a person cannot get probation!

First of all, in order to prove a burglary in the first degree, the State must prove that the structure entered was designed or intended for occupancy for residential use. This is the definition of a “dwelling” under the statute. If it’s a vacant commercial building, then it’s not going to reach the level of first degree burglary. Second, the person must have entered that structure with the intent to commit a felony or a theft while inside. For example, if a person breaks into someone’s house with the intention of sleeping off a night of drinking and partying, then that person has not committed first degree burglary. Third, please note that the charge of burglary does not relate strictly to stealing things from someone’s house. If a person enters another person’s dwelling with the intent of committing rape, then that person has committed a burglary. This is so because the crime of “rape” is a felony. Finally, some may wonder why the Legislature made a list of structures such as railroad cars and watercrafts as places that can be burglarized. Most folks think of houses when they think of burglary. However, the Legislature realized that some people could possibly live in a railroad car or on a houseboat or in an old airplane. As such, lawmakers wanted those dwellings to be protected as well.

As you can see from the penalties, burglary in the first degree is a serious offense. As such, a person facing this charge needs good, sound legal advice. Don’t face this charge without legal counsel.

Jeffrey E. Johnston is a local attorney licensed to practice in Georgia. His practice focuses primarily on Criminal Defense and Personal Injury law. His law firm can be reached at (706) 869-8171.