Have You Been Charged with Burglary in Georgia?

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Many states, including the state of Georgia, have amended their burglary laws. Traditionally, burglary in Georgia was defined as the breaking and entering into a dwelling at night with the intent to commit a felony therein. Today—whether night or day—a person can be charged and convicted of burglarizing an occupied or unoccupied dwelling house, building, structure or vehicle. Bottom line, you can land behind bars even if you enter a vacant building without force and don’t end up stealing anything. If you enter the property of another without permission with the intent to commit a theft, then you will more than likely be prosecuted for burglary.

Georgia Laws on Burglary

In the state of Georgia, there are two degrees of burglary—first-degree burglary and second-degree burglary. Under O.C.G.A. § 16-7-1, a person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another or any building, vehicle, railroad car, watercraft, aircraft, or other such structure designed for use as the dwelling of another.

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

 Penalties for a Burglary Conviction in Georgia

A person who commits the offense of burglary in the first degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years. Upon the second conviction for burglary in the first degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than two nor more than 20 years. Upon the third and all subsequent convictions for burglary in the first degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than five nor more than 25 years.

A person who commits the offense of burglary in the second degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years. Upon the second and all subsequent convictions for burglary in the second degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than eight years.

Georgia Case Law: Burglary & Lesser Included Offenses

In Hiley v. State, 245 Ga. App. 900, 539 S.E.2d 530 (2000), a Muscogee County jury convicted Willie Darrell Hiley of burglary. Following the denial of his motion for new trial, Hiley appealed his conviction, contending that the trial court erred in refusing to give his requested jury charge on the lesser included offense of criminal trespass. The Court found that the law and the evidence required that the jury be instructed on criminal trespass and, therefore, reversed Hiley’s conviction.

In this case, Hiley presented evidence that he went into a vacant house near his residence to help turn on the heat at the request of a homeless acquaintance who planned to sleep there. He denied any intent to commit a theft or other felony. Hiley submitted a written request to charge on the lesser included offense of criminal trespass. The trial court refused to give that charge, finding the evidence did not support a finding of an unlawful purpose. Although the jury was authorized to infer from the evidence that Hiley entered the vacant house to commit theft, it also could have inferred from the evidence that Hiley entered the house for some unlawful purpose other than theft. If so, they could have found him not guilty of burglary as charged in the indictment, but guilty of the lesser offense of criminal trespass.

“[A] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” State v. Alvarado, 260 Ga. 563, 564, 397 S.E.2d 550 (1990). Criminal trespass is a lesser included offense of burglary. ? Johnson v. State, 164 Ga. App. 429-430(1), 296 S.E.2d 775 (1982). To convict on a charge of burglary, the state must prove the defendant entered or remained within the premises of another without authority and “with the intent to commit a felony or theft therein.” OCGA § 16-7-1(a). ? To convict on a charge of criminal trespass, the state must prove that the defendant “knowingly and without authority” entered upon the premises of another “for an unlawful purpose.” OCGA §?16-7-21(b)(1).

The Court held that the trial court must give a requested charge on criminal trespass as a lesser included offense of burglary where the testimony of the accused “if believed, would negate an element of the crime of burglary (entry with intent to commit a felony or theft).” Huffman v. State, 153 Ga. App. 203(2), 265 S.E.2d 603 (1980). Specifically, where the accused admitted the unauthorized entry but denied the intent to commit a felony or theft. 

Possible Defenses Against a Burglary Charge      

Depending on the facts and circumstances of your case, there may be some possible defenses that can lead to your case being dismissed or the charges against you reduced. In order to be convicted of a burglary charge, the prosecution must prove all of the elements of the statute beyond a reasonable doubt. Thus, some possible defenses to a burglary charge include: providing evidence showing that you had consent to enter the property or that you did not have the intent to commit a crime once inside the property. Another possible defense would be to provide an alibi to prove your actual innocence if you truly did not commit the crime.

Contact Bixon Law Today

If you have been charged with burglary or any crime for that matter, it is imperative that you consult an experience criminal defense attorney immediately—one that will fight vigorously to get your case dismissed or the charges against you reduced. Here, at Bixon Law, we will evaluate the facts and circumstances of your case to build the best defense. We represent clients in Atlanta and throughout the state of Georgia. Our lawyers are committed to helping people in difficult situations and working to get our clients the best possible outcome. We invite you to call us at 404-551-5684 for a free consultation today.