Home Invasion Charge in Georgia

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georgia home invasion

Home Invasion is a crime that is often associated with burglaries gone wrong. The reality, however, is that a burglary gone wrong usually will not amount to a conviction. If convicted, however, you will have a felony on your permanent criminal record. Felony convictions come with serious life implications. A felony conviction can limit job opportunities and housing opportunities. Bixon Law has gotten several clients off of these damaging felonies using the strategies outlined below.


In Georgia, Home Invasion is defined under O.C.G.A. § 16-7-5(b)-(c): “A person commits the offense of home invasion in the first degree when, without authority and with intent to commit a forcible [crime] therein and while in possession of a deadly weapon or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury, he or she enters the dwelling house of another while such dwelling house is occupied by any person with authority to be present therein.” Home Invasion comes in the First Degree or Second Degree, determined by whether or not the forcible crime was a felony (first degree) or misdemeanor (second degree). A forcible crime is one which involves the use or threat of physical force or violence brought against any person.

The Home Invasion statute is a dense statute, and comes with many requirements that the prosecutor must show. The elements of the crime which must be proven are:

  1. You entered a dwelling without permission or authority
  2. At the time that you entered, you intended to commit a crime involving use or the threat of physical force in the dwelling
  3. You had a weapon when you entered that can cause serious bodily injury
  4. The dwelling was occupied by a person with authority to be there at the time of entrance

One thing to note is that you must have intended harm when you entered the home- this means that a burglary gone wrong CANNOT be prosecuted as a Home Invasion, as theft is not a forcible or violent crime. Even if the prosecutor is able to argue that you intended to commit a violent crime, though, they must also show that a weapon was on you when you entered. This means that even if events occurred within the dwelling that could be characterized as violent but you used a weapon you found inside the home, you cannot be prosecuted for Home Invasion because you did not have the weapon while entering the dwelling as required by the statute.


A conviction for Home Invasion requires mandatory imprisonment and a fine, and will go on your record as a felony. The judge has an unusual amount of discretion for this particular charge, however. The fine may be up to $100,000, but unlike many other statutes there is no minimum fine. This means that a judge who becomes sympathetic to your case could technically only fine you $1. Similarly, there is a wide range of sentencing options regarding imprisonment. Home Invasion in the Second Degree has a mandatory 5-20 year imprisonment, and Home Invasion in the First Degree has a mandatory 10-20 year imprisonment. Home Invasion in the First Degree also allows the judge to sentence you to imprisonment for life, however. Because of this, it is essential to have an attorney representing you who is familiar through experience with how to make the best impression on the specific judge assigned to your case.

The full text of the statute governing punishment for Home Invasion is found under O.C.G.A. § 16-7-5(d): “A person convicted of the offense of home invasion in the first degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for life or imprisonment for not less than ten nor more than 20 years and by a fine of not more than $100,000.00. A person convicted of the offense of home invasion in the second degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five nor more than 20 years and by a fine of not more than $100,000.00.”

Criminal Defenses

I Didn’t Intend a Forcible Crime. Lack of intent is always a strong defense because it is difficult to prove beyond a reasonable doubt what a defendant is thinking or intending. The best that a prosecutor can do is show circumstantial evidence and hope the jury believes their side. In Home Invasion, however, it can often be easily asserted that you only entered the dwelling intending to commit theft. Juries will be favorable to this defense as home invasions are typically associated with theft, and it will not take a leap of logic to believe that this was your true and only intent.

I Didn’t Bring a Weapon. No matter what transpired within the dwelling, it is a requirement that you had a weapon on you upon entrance. If the prosecutor has no way of proving that an item that was used forcibly did not originate from within the house, they will not be able to convict you of Home Invasion. This is demonstrated in the case law below.

I Was Privileged to Enter. One of the elements of Home Invasion is that you entered the dwelling without permission. If you have a previous relationship with the alleged victim, it can be argued that you were likely invited into the home. If the jury adopts the position that the alleged victim consented to your entry, you cannot be convicted of Home Invasion, regardless of what happened once you were in the dwelling.

Case Law

In Mahone v. State, Deron Mahone appealed a conviction for Home Invasion in the First Degree, for which he was sentenced to life in prison. In June of 2015, Mahone broke into the home of his ex-girlfriend. An argument ensued, and Mahone became enraged. Mahone took a clothes iron and struck his girlfriend with it several times, causing severe injury to her and her unborn child. On appeal, Mahone’s criminal defense attorney argued that because Mahone used a clothes iron that was already in the house, which was not on his person at the time of entry, the prosecutor failed to establish that Mahone had met every element of the crime. The court agreed, and reversed his conviction for Home Invasion in the First Degree.

This is an example of a successful use of the I Didn’t Bring a Weapon defense. Bixon Law frequently utilizes this criminal defense case law to fight for our client’s Home Invasion charges to be dismissed.


If you have been charged with Home Invasion or a similar crime and need the best local criminal defense attorney, give Bixon Law a call today to speak to one of our experienced Georgia criminal defense lawyers. We will vigorously defend your criminal defense rights, and advocate on your behalf to have your criminal case dismissed or your charges reduced. As experienced trial attorneys, we are not afraid to take your case to trial if necessary. We represent clients in Atlanta and throughout the state of Georgia. We are lawyers who are committed to helping people in difficult situations, and we invite you to call us at 404-551-5684 for a free consultation on your case today.