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1st Degree Vs 2nd Degree Burglary What Are The Differences?

June 20, 2020 Federal Criminal Attorneys

Burglary is a very complex crime which comes with various degrees. There is a first, second, third, and fourth degree associated with burglary. Some states have a further sub-classification of with, or without, a weapon during burglary. In all states, burglary is classified as a felony. Fourth degree burglary is the exception, and it’s classified as a misdemeanor.

1st, 2nd, 3rd, and 4th degree burglary crime

In terms of first degree, someone enters your home and has the aim to commit violence/theft. When it comes to second degree, someone enters a property with the goal of committing violence/theft, but the property was “detached,” from the actual home – like a shed, garage, etc. When it comes to third degree burglary, it’s evidence someone broke into your property  but the intent isn’t clear. Alternatively, it could be the intent isn’t theft, but rather a domestic situation. Finally, there’s fourth degree burglary, which happens when someone takes something from someones home/place of business, but didn’t enter with intent. Alternatively, they may have decided to commit burglary, but didn’t do it. Trespassing can be charged as 4th degree burglary. Generally, burglary is accompanied with a theft charge if the defendant took possessions with him/her. If the value of what was stolen exceeded $1000 – the charge is grand theft. This is important. It will influence the maximum sentence imposed which could be as much as 25 years of prison time.

First Degree Burglary

The difference between 1st and 2nd degree is very small. They are often treated the same. The key difference is that a 2nd degree burglary can happen in an auxiliary building, instead of the primary building. In most cases, a first degree burglary involves the use of a weapon like a gun or knife. It’s possible to be charged with burglary even if nothing was stolen. If you enter a property without permission, and intend to commit a crime, you could face first degree burglary charges. There are some states where the only difference between 1st and 2nd degree is the presence of a weapon.


If you’re convicted of burglary, then a judge will determine the sentence. Each state has rules and regulations, and sentencing guidelines. 1st degree burglary is punished more heavily than second degree. The difference is minimal. Prison sentences of up to 25 years, in addition to fines could be imposed. There are certain states in which there are specific sentences, like lengths of time in jail. In other states, the guidelines offer a range – making it so the judge had discretion to determine how much jail time should be imposed. In order for a judge to determine the sentence, they will look at the statutory limits. They will look at what mitigating and aggravating factors there are. An example of an aggravating factor is a detail which makes the crime worse. For example, if you targeted an elderly person, that could be an example of an aggravating factor. Mitigating factors are examples of something which could cause the judge to be more lenient in sentencing. For example, if you take full responsibility and have no past record, you could expect a lighter sentence. Mitigating factors influence judges to reduce the harshness of the sentence. If the defendant has no criminal record, and is willing to accept responsibility, this could enable you to get a lesser sentence.

Defenses for First and Second Degree Burglary

Good defense lawyers will work to undermine the prosecutions case. There are many common defenses for 1st and 2nd degree burglary.

  1. Insufficient evidence is a situation where your defense lawyer will demonstrate the prosecutions evidence doesn’t live up to reasonable doubt
  2. Mistaken identity is another defense which helps. The defense lawyer will argue that the victims failed to correctly identify the person who committed the crime. There are situations where this has happened in the past. For example, if the offender wore a mask, or if its dark.
  3. Lack of intent, is another great defense. Intent is necessary for 1st and 2nd degree charges. If someone entered a structure wanting to commit a time, the prosecutor has to prove this is the case.
  4. Reclaiming possessions, or ownership is another aspect. If the defendant was simply reclaiming what was his in the first place, this can be a defense to 1st and 2nd degree burglary. While reclaiming property isn’t a good reason to illegally enter property, it can help undermine 1st and 2nd degree burglary.

In most burglary cases, your federal criminal defense lawyer will try to lessen the burglary charge to a 3rd or 4th degree. This will significantly reduce the sentence.



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