Understanding Burglary Offenses in South Carolina

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Burglary criminal defense lawyer in Greenville SCIn South Carolina, burglary is the term used to describe three specific offenses that relate to the unlawful entry of buildings or residences. Depending on the facts alleged, 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.
Burglary includes three specific categories: burglary in the first degree; burglary in the second degree (violent and non-violent); and burglary in the third degree. Each 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 its heart, requires that an alleged perpetrator unlawfully enter a building or dwelling with the intent to commit a crime once inside that building or dwelling. To sustain a conviction, the prosecution must prove that a defendant: 1) entered a building or dwelling; 2) without permission; 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 commit the crime of burglary in the first degree, a person must:

  • Enter a dwelling;
  • Without consent;
  • With the intent to commit a crime inside the dwelling; and
  • Aggravate 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
      • Displaying a knife or firearm;
    • 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) provides 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 noted that the minimum fifteen years cannot be suspended, so a conviction under this statute will result 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 divided in to two categories: violent and non-violent. This classification affects the amount and quality of a convicted person’s incarceration at the department of corrections and can result in collateral consequences, including state penalties for firearm possession.
Burglary in the second degree (violent) is governed by South Carolina Code Section 16-11-312(B). To commit burglary in the second degree (violent) a person must:

  • Enter a building;
  • Without consent;
  • With the intent to commit a crime inside the building; and
  • Aggravate 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
      • Displaying a knife or firearm;
    • Entering the building during the nighttime; or
    • Having at least two prior burglary or housebreaking convictions.

The difference between burglary second degree (violent) and burglary first degree, then, is the type of structure entered. First degree burglary is limited to instances where the person enters a “dwelling,” defined as any structure in which a person sleeps on a regular 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 commit a crime once inside.

It should be noted that burglary second degree (non-violent) contemplates the unlawful entry of a dwelling with the intent to commit a crime once inside, so long as none of the aggravating factors exist.
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 imposing a sentence of up to ten years’ incarceration.

What is Burglary in the Third Degree?

Burglary in the third degree is the entry of a building without consent and with the intent to commit a crime once inside. This offense contemplates the unlawful entry of any building other than a dwelling, so long as the none of the aggravating factors exist. Burglary in the third degree is codified 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 a maximum of five years in prison for a first offense and a maximum of ten years in prison for a second offense.
The Interplay of Burglary Offenses
Each degree of burglary builds 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 accompanied 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.
By way of example, if a defendant is tried for allegedly committing burglary in the first degree for allegedly breaking in to a dwelling at night to steal 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, then the judge would have to instruct the jury on the law regarding burglary in the second degree (non-violent). The jury, then, could choose to convict the defendant of the lesser-included offense. In light of the minimum mandatory sentence imposed by the burglary first degree statute, a conviction for the lesser-included offense would save the defendant from a much more severe criminal penalty.
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 jail time. These cases are extremely 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. Attorneys David Price and Sam Tooker will help you navigate the waters of your burglary charge and ensure that every legal and factual defense is identified and pursued. Please call the law office of David R. Price, Jr., P.A. and ask to speak with one of our attorneys or use our convenient online form.

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