Burglary sounds like a straight-forward crime, but it’s not. Are you surprised to hear that breaking into an abandoned building is still burglary? Or that entering an unlocked warehouse so you can look around to see if there’s anything you want is burglary? A burglary charge also fits the typical scenario of breaking into someone’s house to steal something.

The examples given above are all burglary charges even though they are so different. How can this be? There are different types of burglary charges, called “degrees.”

In this article you will learn:

• What burglary is in South Carolina;
• What 1st, 2nd and 3rd degree burglary charges are; and
• The penalties you may face if you are convicted of burglary.

Burglary Charges in South Carolina

Basically, the charge of Burglary in SC means that someone breaks into some sort of structure without permission and with the plan to commit a crime while inside the structure. The exact type of structure is very important, as you will learn below.

1st, 2nd and 3rd Degree Burglary in SC

There are three different degrees of Burglary in SC: 1st degree, 2nd degree and 3rd degree charges, with each charge having different penalties. Burglary 2nd degree is further broken down into violent and non-violent charges. Burglary 3rd degree’s penalties are broken down depending upon the accused person’ convictions for prior offenses.

Burglary, 1st Degree

In South Carolina 1st Degree Burglary can occur when a person enters a dwelling of another without consent AND with intent to commit a crime in the dwelling and ONE of the following:

1. When the accused is entering or while in the dwelling or while the accused is fleeing from the dwelling, he or another participant in the crime:
   1. is armed with an explosive or deadly weapon; or
   2. causes physical injury to a person (and that person is not a participant in the crime); or
   3. uses or threatens the use of a dangerous instrument; or
   4. displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or

1. The accused person has a prior record of two or more convictions for burglary, or housebreaking (or a combination of both); or

1. If the person enters or remains in the dwelling in the night time, then the accused person could be guilty of Burglary 1st degree.

When looking at a burglary scenario that involves someone’s home as the “structure” it will be a 1st degree charge only if one or more of the aggravating circumstances listed above are present. Next, we will look at 2nd degree Burglary charges. Remember the aggravating circumstances rule, because certain 2nd degree Burglary charges also involve a home as the “structure.”

Burglary, 2nd Degree

Sometimes when people think of Burglary 2nd Degree, they get it mixed up with Burglary 2nd offense. The degrees of Burglary are distinguished by their various legal definitions. The offense number takes into account the person’s prior convictions.

Non-Violent 2nd Degree Burglary

There are two types of Burglary, 2nd Degree. First, there is Burglary 2nd Degree, non-violent, found in Section 16-11-312(A). The statute defines which crimes are violent and which crimes are non-violent. The difference is very important when it comes to charging, the facts involved, and ultimately… sentencing. If someone enters a dwelling without consent and with intent to commit a crime inside, they can be charged with Burglary 2nd Degree, non-violent.

Violent 2nd Degree Burglary

The second type of Burglary 2nd is Burglary Second Degree, violent, found in Section 16-11-312(B). When a person enters a building without consent and with intent to commit a crime inside AND he or she does ONE or more of the following (the accused person could be the “lookout(s)” or the person(s) who actually enter(s) the building):

1. When entering the building, or fleeing from the building (without consent) and with the intent to commit a crime that person:
   1. Is armed with a deadly weapon (the weapon can be stolen, but doesn’t have to be a stolen weapon) or explosive; or
   2. Causes physical injury to any person who is not a participant in the crime; or
   3. Uses or threatens the use of a dangerous instrument; or
   4. Displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or

1.  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

1. The entering of the building or remaining in the building occurs in the nighttime.

Burglary, 3rd Degree

The elements of Burglary 3rd degree include entering a building without consent and with the intent to commit a crime inside the building. Note that the person does not actually have to commit a crime inside the building, but the intent must be there for the person to commit a crime inside the building. 

So what, exactly is a “dwelling?”

The legal definition of a dwelling may be vastly different than what you may be thinking. The legal definition of a dwelling includes a dwelling house, any house, outhouse, apartment, building, erection, shed or box where someone could sleep.

The statute lists many different types of people who could be sleeping in a dwelling. A person sleeping there could be a proprietor, tenant, watchman, clerk, laborer or person who lodges there with a view to the protection of property.

The legal definition of dwelling includes all houses, outhouses, buildings, sheds and erections which are within two hundred yards of the dwelling house.

What is a building?

A building could be an office building, warehouse, shopping mall, clothing store, grocery store, convenience store, and much more. Basically, it is a structure that isn’t a house or home.

Any part of the building can be considered a building for these purposes. Courts have found that an enclosed crawl space under a building was an important part of office building. So, in SC, a crawl space, even though it’s only part of a building, is considered a building for the purposes of Burglary 2nd. The SC courts have also found that the ceiling area of a building is considered a “building” for the purposes of the statute.

What does enter without consent mean?

The legal term of “entering” as it relates to Burglary means you went into a place that you were not supposed to go; you didn’t have permission to enter that place.

Many people think that the front door, for example, has to lock in order to qualify as “entering without consent.” But that is not true. If you enter a door that is not locked or even cracked open, you still could be guilty of entering without consent.

Remember, that the legal definition of some things can be completely different than the plain, ordinary meaning of a word. The crime of burglary does not require proof of a break in. 

Potential Penalties for a Burglary Conviction

Burglary convictions should not be taken lightly. All 3 types of burglary charges are felonies. Even the lowest level of burglary charges in South Carolina can land you in jail.

Burglary, 1st Degree

The penalties for 1st degree Burglary can be found in SC Code Section 16-11-311(B). Burglary 1st is a felony. If convicted of Burglary 1st Degree, you could spend anywhere from 15 years to life in prison. Notice that Burglary 1st degree is not an offense that is eligible for probation as a sentence. Rather, the mandatory minimum that a judge can sentence you is 15 years. The maximum is life in prison.

The time that you spend in prison will be up to the Judge. The Judge will take in many factors in sentencing a Burglary 1st. Some of those sentencing factors include your prior criminal record, age, health status, educational background, employment status and other factors.

The victim in the case will be allowed to have their voice heard, if they wish through personally appearing in court or having their wishes communicated through the prosecutor or a victim’s advocate. Under the Victim’s Rights Act, a victim has many rights, including the right to be notified of court hearings. If the victim is out of any money or sentimental items, the Judge may order you to pay back the victim (this is called restitution). Restitution may be ordered as part of your Burglary 1st sentence.

Burglary, 2nd Degree

Burglary 2nd Degree, non-violent is a felony and if convicted you could face up to 10 years in prison.

Burglary 2nd Degree, violent is a felony and if convicted you could face up to 15 years in prison.

Burglary, 3rd Degree

The Penalty for a conviction of Burglary 3rd, first offense is 0-5 years in jail. Burglary 3rd is a felony, not a misdemeanor. The penalty for a conviction of Burglary 3rd, second offense is 0-10 years in jail.

Need help with your South Carolina burglary charge?

A burglary charge, regardless of what degree it is, is a serious charge. Being a convicted felon means you lose certain rights, and it can follow you the rest of your life.

It is important that you reach out to a South Carolina criminal defense attorney so they can explain your possible defenses. A criminal defense attorney should be able to advise you on your options.