Burglary, sometimes referred to as the crime of breaking and entering, is generally said to have occurred when an individual enters a building or other structure without permission and with the intent to commit a theft or other felony crime while inside. 

For example, an individual who breaks a window to gain entry into a commercial building for the purposes of stealing company records, can be arrested and charged with the crime of burglary. 

Under Georgia law, the crime of burglary in the first degree is defined in the Official Code of Georgia Annotated (“OCGA”). The OCGA is a compilation of all laws and statutes in the state of Georgia. According to the OCGA burglary laws, first degree burglary occurs when:

  • The defendant enters or remains in an occupied, unoccupied, or vacant home that belongs to another or any vehicle, building, railroad car, watercraft, aircraft, or other such dwelling structure; 
  • Without permission; and 
  • With the intent to commit a theft or other felony crime while inside.

First degree burglary is a very serious felony offense that can result in a sentence of up to twenty years’ imprisonment if a person is convicted on such charges.

What Is Burglary in the Second Degree in Georgia?

Under Georgia state law, 2nd degree burglary is considered to be a felony offense. This means that a defendant who is arrested and charged with burglary in the second degree in Georgia can receive a prison sentence if they are convicted. 

In order to commit 2nd degree burglary in Georgia, the defendant must have done the following:

  • Entered and/or remained in an unoccupied, occupied, or vacant building, structure, railroad car, vehicle, watercraft, or aircraft;
  • Without permission; and
  • With the intent to commit a theft or other felony crime while inside.

Like many other states, Georgia has eliminated the original requirements for burglary, including that the offense must take place at night and must occur in a residence. Today, a person can be charged with burglary no matter what time of day it is and regardless of whether the burglary occurred in a residential dwelling or commercial property. 

Although elimination of the time of day element applies to both degrees, the type of venue does not. Venue is also one of the factors that separates the degrees of burglary in Georgia.

What Is the Difference between First and Second Degree Burglary in Georgia?

According to Georgia state burglary laws, there are three primary forms of burglary. However, the third category relates to specific crimes against businesses and will not be discussed in this article. Instead, this section will focus on Georgia’s primary categories of burglary: burglary in the first and second degree. 

A person can be charged with first degree burglary in Georgia when they enter or remain in an occupied, unoccupied, or vacant home that belongs to another or any vehicle, building, railroad car, watercraft, aircraft, or other such dwelling structure. This must be done without permission and with the intent to commit a theft or other felony crime while inside.

On the other hand, a person can be charged with second-degree burglary in Georgia when they enter or remain in an unoccupied, occupied, or vacant building, other structure, railroad car, vehicle, watercraft, or aircraft without permission and with the intent to commit a theft or other felony crime while inside. 

The primary difference separating these two degrees is that with first degree burglary, the venue where the burglary occurred must be used as a dwelling or residence. In contrast, with second degree burglary, the venue must not be one that is used for living purposes. Otherwise, the crime will convert to first degree burglary.

As with most crimes, the other main difference between the two degrees is the level of punishment that a defendant can receive if they are convicted of burglary charges in Georgia. In general, a defendant who is convicted of first degree burglary in Georgia will receive a much harsher sentence than a defendant who is convicted of second degree burglary in the state. 

What Is the Punishment for Burglary in the Second Degree?

As discussed above, there are two degrees of burglary in the state of Georgia. Regardless of which degree of burglary that a Georgia defendant is charged with, both are considered to be a felony offense. Again, another difference between first and second degree burglary in Georgia is the type of criminal penalty that a defendant can receive after they are convicted on such charges.

The following are some of the more common punishments that a Georgia criminal court may issue for a conviction of burglary in the second degree in Georgia:

  • A prison sentence of at least one full year, but no longer than five years’ imprisonment;
  • A prison sentence ranging from one to eight years if this is the second time that the defendant has been convicted of burglary in the second degree; and 
  • Possible criminal fines.

What Are Some Defenses to Burglary in the Second Degree?

There are a number of different legal defenses that a defendant may be able to raise against second degree burglary charges in Georgia. Some of those defenses include:

  • The prosecution is unable to prove the elements of the crime or lacks enough evidence to support the charges;
  • The defendant is under the age of 13 and thus cannot be convicted in the state of Georgia;
  • The defendant lacks the mental capacity to reach the specific level of intent required to commit this crime;
  • The evidence against the defendant was obtained illegally or was not properly established through the chain of custody;
  • Law enforcement arrested the wrong suspect (e.g., mistaken identity); and/or
  • The individual had permission to enter the property.

It is important to note that a Georgia defendant may have other legal defenses available to them, depending on the specific facts of their case. Thus, a defendant who is facing burglary charges in Georgia should contact a local lawyer for further legal advice. This will help them find out whether there are any other defenses they can raise that would explicitly apply to the facts of their case.

Do I Need a Lawyer for My Burglary Charge?

It is strongly recommended that you hire a Georgia criminal lawyer in your area immediately if you are facing burglary charges in Georgia. Regardless of the degree, burglary is a serious offense that can result in criminal penalties as well as a criminal record that can affect the rest of your life. 

A Georgia criminal lawyer who has experience in handling burglary cases will be able to perform research to determine whether there are any legal defenses you can raise against the charges. Your lawyer can also discuss your options and can explain how the laws in Georgia may affect the outcome of your case. 

Additionally, your lawyer can inform you of your legal rights as a criminal defendant under state law and can predict the type of penalties you may receive if you are convicted.

Finally, if you were already convicted on burglary charges in Georgia, you may also want to consider hiring a local lawyer if you believe that you are innocent and would like to appeal the case. In very limited circumstances, your lawyer may be able to help you appeal your sentence, but only if it is illegal, unreasonable, or unconstitutional. 

This is why it is so important that you hire a lawyer before your trial since that is when you have the greatest range of options available to you.