Burglary is a very serious offense under Georgia laws. In Cobb County, most judges require prison time, even for a first offender. What does it take to be charged with burglary? Basically, the statutory definition it is the entry into a dwelling, without authority to be there, and with the intent to commit a theft or felony therein. The penalty for this type of offense is up to 20 years in prison and up to a $100,000.00 fine. Typically there is restitution involved as well.

The most common case I see is that because the door was open or the house was abandoned and there wasn’t a breaking or entering, it shouldn’t be burglary but theft. This is simply not true. On those facts, you CAN be charged and convicted of burglary under Georgia law. But that does not mean your case doesn’t have a defense.

Let’s begin by stating that burglary now has degrees, lesser offenses and what are called affirmative defenses, or legal excuses. It is impossible to say on a webpage if your case facts suggest burglary, but here are some of the basics:

  1. The difference between first and second degree burglary is basically what has been broken into. First, is it a home, garage, boat, trailer, aircraft, railroad car or warehouse? If so, then are these properties dwellings? In other words, are they intended for living for residential use? Did the person enter without legal authority? This means had no legal right or permission from someone who had authority to let him in? And finally did the person mean to steal something (not matter how small) or commit some sort of other felony when they went in? If yes to these questions, the 1st degree burglary applies which has the twenty year maximum.
  2. If the home, garage, boat, trailer, aircraft, railroad car or warehouse was NOT for residential use, and the answer to everything else is still yes, then it is 2nd degree burglary, which carries a maximum penalty of 5 years and a $100,000.00 fine.

There is a burglary cousin called a “smash and grab”. This offense, requires intentionally and without authority entering into a retail establishment with the intent to commit a theft and causing more than %500.00 in damage. The penalty for this offense is a sentence of 2-20 years and a fine of up to $100,000.00.

Also, possession of tools, which means having anything (yes even a screwdriver) that could remotely be used as a burglary tool is not only used against you as circumstantial evidence, but is a separate crime punishable by 1-5 years in prison.

Finally, if you have possession of stolen goods (which is a theft crime of theft by receiving), a jury will be told this is circumstantial evidence of burglary.


There are legal defenses to burglary. First, there is that the person charged had a claim of right to the items. This can be established by an honest mistake that it was unknown that the goods belonged to another person. That the person charged reasonably thought they had a right to the goods, and was exercising that right. And finally, took the items with the intention to pay and reasonably believing the owner would have consented in letting them do so.

Also, the State still must prove all the elements to establish burglary. Sometimes all they can prove are misdemeanor charges, such as criminal trespass or theft. But they need no fingerprints, or CSI items. The circumstances can be enough to convict you.

Don’t let yourself fall into this trap. Schedule an appointment with us, we can help.