10.6.1.4: Burglary Grading

Burglary is typically divided into degrees (Iowa Code §§ 713.3, 713.5, 713.6A, 2011). First-degree burglary is generally a serious felony that can serve as the predicate felony for first-degree felony murder (Cal. Penal Code § 189, 2011) and a strike in states that have three strikes statutes (Cal. Penal Code § 1192.7, 2011). Factors that can elevate burglary grading are the use or possession of a weapon, the entry into a residence, dwelling, or building where people are present, the commission of burglary at nighttime, or the infliction of injury or death (Mass. Gen. Laws ch. 266 § 14, 2011). Second- and third-degree burglary generally are still felonies, although less serious than first-degree burglary (Ala. Code § 13A-7-7, 2011). The Model Penal Code grades burglary as a felony of the second degree if perpetrated in the dwelling of another at night, or if the actor purposely, knowingly, or recklessly inflicts or attempts to inflict bodily injury or is armed with explosives or a deadly weapon. Otherwise, the Model Penal Code grades burglary as a felony of the third degree (Model Penal Code § 221.1(2)).

Keep in mind that a defendant can be prosecuted for burglary even if the felony or crime intended after entry never takes place. In addition, if the defendant actually commits the felony or crime after entry, the defendant can be prosecuted for both burglary and the completed crime without violating the protection against double jeopardy in the Fifth Amendment to the federal Constitution. The Model Penal Code states that a “person may not be convicted both for burglary and for the offense which it was his purpose to commit after the burglarious entry…unless the additional offense constitutes a felony of the first or second degree” (Model Penal Code § 221.1(3)).

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