Many people ask, “what is the difference between Burglary in the first degree, second degree, and third degree?”. I want to attempt to make some clarification of the different charges of Burglary under South Carolina law so that anyone may know exactly what “Burglary” charge someone is attempting to defend.

I have both prosecuted and represented people charged with Burglary. Many times the client or client’s family will drop the word “degree”. That’s when I hear, “he’s charged with Burglary 2nd, yet this is his first offense???” The first rule is to recognize is that the different degrees of Burglary are not directly related to the number of prior convictions. In other words, a person can be charged with Burglary in the third degree, regardless of whether it is his first offense or not.  However, as you read on, you will notice that a conviction of two or more prior Burglaries will “enhance” a lower charge by adding an “aggravating circumstance.”

Burglary in the first-degree is the most serious and Burglary in the third degree is the least serious. With that in mind, let’s go through the different levels of Burglary as contemplated by South Carolina law.

Burglary in General

Burglary is defined by statute as the “entering of a (building or dwelling) without consent and with intent to commit a crime therein.” While there are three different degrees of Burglary in South Carolina, there are actually five possibilities regarding what charge of Burglary is prosecuted. See 16-11-311, 312, and 313.

From the order of most serious to the least serious, those charges are:

1. Burglary in the first-degree
2. Burglary in the second degree (violent)
3. Burglary in the second degree (non-violent)
4. Burglary in the third degree (second offense)
5. Burglary in the third degree (first offense)

Burglary in the First Degree, AKA Burglary 1st

Burglary in the first-degree is codified in section 16-11-311 and is considered to be  “violent” and “most serious”. The offense carries a minimum of 15 years in prison and up to life and no suspension of the mandatory minimum or probation may be given. It is one of the few offenses in South Carolina that does not involve a death that carries a life sentence.

16-11-311

(A) A person is guilty of Burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and either:

(1) when, in effecting entry or while in the dwelling or in immediate flight, he or another participant in the crime:

(a) is armed with a deadly weapon or explosive; or
(b) causes physical injury to a person who is not a participant in the crime; or
(c) uses or threatens the use of a dangerous instrument; or
(d) displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or

(2) the Burglary is committed by a person with a prior record of two or more convictions for Burglary or housebreaking or a combination of both; or

(3) the entering or remaining occurs in the nighttime.

(B) Burglary in the first degree is a felony punishable by life imprisonment. For purposes of this section, “life” means until death. The court, in its discretion, may sentence the defendant to a term of not less than fifteen years.

When you break down the statute, the elements of Burglary in the first-degree are:

1. the entering of a dwelling (NOTICE: “Breaking” or “forced entry” is not an element.)
2. without consent
3. the with intent to commit a crime therein
4. and the presence of at least one “aggravating circumstance”

Essentially, the Burglary of a dwelling with an aggravating circumstance is a Burglary and first-degree.