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

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The crime of burglary is actually a highly complex crime that comes in varying degrees. They are, as a rule of thumb, first, second, third, and fourth degree, although some states add a further sub-classification of with or without a weapon. In all states, burglary charges are classified as felonies. Fourth degree burglary is the exception, as it is classed as a misdemeanor.

1st, 2nd, 3rd, and 4th Degree Burglary

With first degree burglary, someone has entered the home of another person with the aim to commit violence and/or theft. In the case of a second degree burglary, someone entered a property with the aim to commit violence and/or theft, but the property could be a building detached from the actual home, such as a shed.

In the case of a third degree burglary, it is evident that someone has broken into someone else’s property. However, the intent isn’t necessary clear. Alternatively, the intent is clearly not theft, but rather a domestic case. Finally, there is fourth degree burglary, which happens when people take something from another person’s home or place of business, but they didn’t enter with that intent. Alternatively, they may have intended to commit burglary, but didn’t actually do it. Trespassing cases may be charged as a fourth degree burglary, for instance.

Generally, a burglary charge is accompanied by a theft charge, if the defendant did indeed take certain possessions. Should the value of what was stolen exceed $1,000, the charge will be of grand theft. This is an important issue to be aware of, as it will heavily influence the maximum sentence imposed, which could be as much as 25 years in prison.

First Degree Burglary

The difference between first and second degree burglary is very small and they are often treated as the same. The key difference, as stated previously, is that a second degree burglary can have happened in an auxiliary building, rather than the primary building. In most cases, a first degree burglary also involves the use of a deadly weapon, such as a gun or a knife.

People can be charged with burglary even if they did not steal anything. Anyone who enters a property without permission, intending to commit a crime such as theft, rape, or murder, can face a first degree burglary charge. There are states in which the only difference between first and second degree, in fact, is the presence of a weapon.


If someone is convicted of burglary, the judge will determine the appropriate sentence. Each state has its own rules, regulations, and sentencing guidelines. First degree burglary is generally punished more harshly than second degree burglary, although the difference is quite minimal. A prison sentence of up to 25 years as well as fines and restitution may be imposed.

Many factors are of influence on the exact sentence, however, and these will be described in the relevant state statutes. There are certain states in which distinct sentences, such as length of time in prison, are listed. In other states, the guidelines offer a range of years, leaving it at the judge’s discretion to determine how much time should be imposed. Fines, which may be imposed as well as a prison sentence or in lieu of, are also included.

In order for judges to determine the sentence, they will look at the statutory ranges. They will also determine what the mitigating and aggravating factors in a case are. An aggravating factor is a detail within the case that makes the crime worse, such as the victim being very vulnerable, or the defendant being the leader in the crime. A mitigating factor is something that could cause the judge to be more lenient in the sentencing. For instance, a defendant who takes full responsibility and who has no past criminal history could be given a much lighter sentence.

Mitigating factors, on the other hand, influence judges to reduce the severity of the sentences they hand down. Defendants’ lack of a criminal record and willingness to accept responsibility for the offense are both mitigating factors that will help them ask for a lesser sentence.

It is not unheard of for people to be sentenced to 25 years in prison for first degree burglary, and 20 years for second degree. However, this does vary tremendously depending on the state. In the state of New York, for instance, the range is between one and 25 years. Meanwhile, in Illinois, it is up to 15 years. Additionally, fines are often imposed, which can be as high as $25,000.

Defenses for First and Second Degree Burglary

A good defense lawyer will aim to cast reasonable doubt on the prosecution’s case. Some of the most common defenses for both first and second degree burglary include:

  • Insufficient evidence, whereby the defense attorney demonstrates that the evidence presented does not clear up reasonable doubt.
  • Mistaken identity, which is a common defense that plays on the fact that victims are often going through complex emotions during a burglary. The result is that they often fail to provide correct identification of the perpetrator. There have been many situations in which this has happened, particularly if the offender wears a mask, or it is dark. If this happens, the defense attorney will try to demonstrate that the victim’s testimony cannot be trusted due to insufficient lighting and stressful emotions of the victims.
  • Lack of intent, as intent to commit burglary is a requirement for first and second degree charges. Essentially, someone must have entered a structure wanting to commit a crime in order to be convicted. The burden of proof of this lies with the prosecution.
  • Reclaiming possessions or ownership, which essentially means that the defendant did not steal anything from the structure, but rather aimed to reclaim what was rightfully his in the first place. While this may not be legally allowed, it does generally mean that a first or second degree burglary charge also won’t stick.

In most cases, defense attorneys will try to lessen the burglary charge to third or even fourth degree. This will significantly reduce the possible sentence to be imposed by the judge.