A Comprehensive Legal Guide to Burglary Defense in South Carolina

More Than Just Theft—The Severity of Burglary Charges

In the eyes of the law, your home is your castle, and South Carolina statutes are designed to protect that castle. This is why burglary is distinct from simple theft or larceny. While larceny punishes the taking of property, burglary punishes the violation of space. Because the law views the invasion of a structure—especially a dwelling—as a potential threat to human life, prosecutors in the Thirteenth Judicial Circuit treat these cases with immense severity.

It is a common misconception that you must “break” a window or kick down a door to be charged with burglary. In reality, simply turning a doorknob and entering a house, a business, or even a shed without permission, provided you have the intent to commit a crime inside, constitutes burglary.

The consequences of a conviction are staggering. Burglary in the First Degree is one of the few crimes in South Carolina that carries a potential life sentence. Even lesser degrees of burglary are classified as “serious” or “violent” felonies, meaning they carry mandatory minimums and strike provisions under the state’s recidivism laws.

As a South Carolina Criminal Defense Lawyer, I have seen how easily a misunderstanding or a simple trespass can be escalated into a major felony charge by law enforcement. Whether you are accused of entering a neighbor’s garage or a commercial business, you are facing a legal battle that requires precise knowledge of the “elements” of the crime. This guide is designed to deconstruct those elements and show you how I build a defense against them.

Part I: The Core Elements of Burglary

To understand how to defend against burglary, you must first understand what the State must prove. Under South Carolina law, Burglary is broadly defined as entering a dwelling or building without consent and with the intent to commit a crime therein.

The prosecution must prove three distinct elements beyond a reasonable doubt:

1. Entry: You entered a structure. This does not require force. Walking through an open door counts.
2. Lack of Consent: You did not have permission to be there.
3. Intent: You entered with the intent to commit a crime inside (usually theft, but it could be assault, vandalism, or any other crime).

The “Intent” Trap: This is the most litigated element. If a person breaks into a house to sleep because they are homeless and it is freezing outside, they are technically guilty of Trespassing, not Burglary, because they did not intend to commit a separate crime (like theft) inside. However, police often assume the intent was theft and charge Burglary regardless. My job as your attorney is to challenge that assumption.

Part II: The Tiered System of Burglary Charges

South Carolina divides burglary into three degrees. The degree you are charged with depends on the type of structure entered (dwelling vs. non-dwelling) and the presence of “aggravating factors.”

1. Burglary in the Third Degree (The Baseline)

This is the most common burglary charge, typically involving non-residential buildings.

• The Statute: S.C. Code § 16-11-313.
• The Conduct: Entering a building without consent with intent to commit a crime. This usually applies to businesses, storage sheds, detached garages, or abandoned properties.
• The Penalty:
  • First Offense: Felony, up to 5 years in prison.
  • Second Offense: Felony, up to 10 years in prison.

While Third Degree is often considered “non-violent,” it is still a felony that creates a permanent criminal record, barring you from many employment opportunities.

2. Burglary in the Second Degree (The Escalation)

This charge bridges the gap between property crime and violent crime. It creates two distinct categories (Violent and Non-Violent) based on the building type and circumstances.

• The Statute: S.C. Code § 16-11-312.
• The Conduct:
  • Option A (Dwelling): Entering a dwelling house without consent with intent to commit a crime (but without aggravating factors like weapons or nighttime entry).
  • Option B (Non-Dwelling + Aggravation): Entering a non-dwelling (like an office) where an aggravating factor is present (e.g., the suspect was armed, caused injury, or entered at night).
• The Penalty: Felony, up to 15 years in prison.
  • Crucial Distinction: Burglary 2nd Degree of a Dwelling is considered a “Violent Crime” for sentencing purposes, meaning you must serve at least 85% of the sentence before parole eligibility.

3. Burglary in the First Degree (The Life Felony)

This is the most serious property crime in South Carolina law. It is reserved for home invasions that pose a significant risk to the occupants.

• The Statute: S.C. Code § 16-11-311.
• The Conduct: Entering a dwelling house without consent with intent to commit a crime, PLUS an aggravating factor:
  • Aggravating Factors:
    • The entry occurred in the night time.
    • The suspect was armed with a deadly weapon (or explosive).
    • The suspect caused physical injury to a non-participant.
    • The suspect used or threatened to use a dangerous instrument.
    • The suspect has two or more prior convictions for burglary or housebreaking.
• The Penalty: 15 years to Life in prison.
  • Mandatory Minimum: A conviction carries a mandatory minimum of 15 years that cannot be suspended to less than 15 years unless the prosecutor agrees to a reduction.

Note on “Nighttime”: Under South Carolina law, “nighttime” is simply defined as the time between sunset and sunrise. Breaking into a house at 5:30 PM in winter could be Burglary 1st Degree simply because the sun had set. This technicality often shocks defendants.

For a deeper dive into the exact text of these laws, you can review the S.C. Code of Laws Title 16, Chapter 11.

Part III: What Constitutes a “Dwelling”?

Because the penalties skyrocket when a “dwelling” is involved, the legal definition of this term is a common battleground in court.

A Dwelling House includes any house, outhouse, apartment, building, erection, shed, or box in which there sleeps a “proprietor, tenant, or watchman.” It also includes the “curtilage” (the immediate surrounding grounds) of the home if they are within 200 yards.

• The Vacation Home: A house is still a dwelling even if the owners are on vacation or if it is a secondary residence, provided it is “usually occupied.”
• The Attached Garage: Entering an attached garage usually counts as entering the dwelling, elevating a potential 3rd Degree charge to a 2nd or 1st Degree charge.
• The Uninhabited Flip: An empty house under renovation where no one sleeps may not be a dwelling, which is a critical distinction I can argue to reduce charges.

Part IV: The “Violent” Crime Designation and Strike Rules

In South Carolina, specific crimes are categorized as “Violent” or “Serious” under the statutes, which triggers the state’s “Two Strikes” and “Three Strikes” laws.

• Burglary 1st Degree is a “Violent” and “Most Serious” offense.
• Burglary 2nd Degree (Dwelling) is a “Violent” and “Serious” offense.

The Implications:

• Parole Eligibility: If convicted of a violent burglary, you are not eligible for parole until you have served 85% of your sentence.
• Three Strikes Law: If you are convicted of a “Most Serious” offense (like Burglary 1st) and you have prior convictions for other “Most Serious” offenses, you could face Mandatory Life Without Parole.

To understand the full impact of these classifications on prison time, you can reference the statistics provided by the South Carolina Department of Corrections.

Part V: Strategic Defenses Against Burglary

When facing a charge with a 15-year mandatory minimum, plea bargaining is often not an option unless the charge is reduced. Therefore, my defense strategy focuses on attacking the evidentiary pillars of the case.

1. Mistake of Fact / Consent

The most direct defense is that you believed you had permission to enter.

• The “Key” Defense: If you had a key, or if you had previously stayed at the residence and were never formally trespassed or told to leave, I can argue that you had “implied consent” to enter.
• The Wrong House: In cases of intoxication, individuals sometimes mistake a neighbor’s house for their own. While this is not a complete defense to trespassing, it negates the intent to commit a crime, which is necessary for a burglary conviction.

2. Lack of Intent to Commit a Crime

Burglary requires the intent to commit a separate crime inside. If you entered a structure merely to seek shelter from the rain or cold, or to sleep, you are guilty of Trespassing, but not Burglary.

• Strategy: I look for evidence that supports a non-criminal motive, such as the lack of burglary tools, the fact that nothing was stolen or disturbed, or statements made at the scene indicating you were just looking for a place to rest.

3. Forensic Challenges (Fingerprints and DNA)

Prosecutors often rely on forensic evidence to place a defendant at the scene. However, forensics only prove you were there at some point, not necessarily during the crime.

• Transfer Evidence: If you have ever been a guest at the home or a patron at the business, your fingerprints or DNA should be there. I can argue that the forensic evidence is “stale” or unrelated to the break-in.
• Misidentification: In Burglary 1st Degree cases involving “nighttime” entry, lighting is poor and witness identification is notoriously unreliable. I vigorously cross-examine eyewitnesses and use expert testimony to highlight the flaws in nighttime identification.

4. Challenging the “Aggravating Factors”

In Burglary 1st Degree cases, removing the aggravating factor can save a client from a life sentence.

• The “Weapon” Challenge: If the police claim you were “armed” because you picked up a pocketknife or a heavy object inside the house, I can argue that you did not enter armed and did not intend to use the object as a weapon.
• The “Nighttime” Challenge: I meticulously check the official sunset records for the specific day of the offense. If the crime occurred at dusk, minutes before official sunset, the charge must be reduced to 2nd Degree.

Part VI: Why You Need a Dedicated Advocate

If you are arrested for Burglary, particularly First Degree, the system is designed to lock you away for decades. The Solicitor’s Office views these cases as high-priority public safety threats. They are not inclined to offer lenient deals.

The Baldwin Law Firm is built on the belief that a charge is not a conviction. I understand the nuances of the “dwelling” definition, the unreliability of eyewitness IDs, and the critical importance of proving “intent.” I am prepared to investigate your case, visit the scene, and challenge the state’s narrative.

Whether it involves negotiating a reduction from First Degree (Life) to Third Degree (5 years) or taking the case to trial to prove your innocence, I will stand as your sole advocate in the courtroom.

Act Now to Protect Your Castle and Your Freedom

Burglary is a complex area of law where a few minutes on the clock (sunset) or a few feet of distance (dwelling vs. shed) can change the potential sentence by decades. You cannot navigate these technicalities alone.

Do not speak to investigators. They are looking for a confession to the “intent” element (“I just went in to grab some cash”) that will seal your fate. Exercise your right to remain silent and contact me immediately.

Review your rights and the legal definitions of violent crimes on our Violent Crimes Defense page. If you are ready to start your defense, Contact The Baldwin Law Firm for a confidential consultation. For broader context on crime rates and enforcement trends, you can consult the FBI Uniform Crime Reporting Program.

Your freedom is worth the fight. Let’s get to work.