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Juliana
Juliana, Lawyer
Category: Criminal Law
Satisfied Customers: 1651
Experience:  Former prosecutor with 4 years of experience, criminal justice degree
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I have a pending charge of burglary second degree

Customer Question

I have a pending charge of burglary second degree (non-violent) and quite frankly, I'm a little nervous about what the outcome of the sentence might be. I've never, ever been in trouble in my life. Can somebody tell me what kind of sentence I'm looking at? I've heard all kinds of different possibilities, from probation, to prison of not more than 15 years, to P.T.I. But I also served 2-1/2 weeks in the county, what is the possibility that I'll get time served? Remember, I'm a 1st time offender, so a defenative answer would set my mind at ease. And truthfully, I should be charged with accessory because I knew about the crime, but I did'nt commit it. So, how good are public defenders at getting a sentence dropped or reduced?
Submitted: 7 years ago.
Category: Criminal Law
Expert:  Juliana replied 7 years ago.

Hello,

Thank you for using Just Answer. I am a licensed attorney and former prosecutor (4 years). I will be happy to assist you with your question.

The second degree burglary statute in South Carolina is found in Section 16-11-312 of the South Carolina Code of Laws. Here is the text of that law:

SECTION 16-11-312. Burglary; second degree.

(A) A person is guilty of burglary in the second degree if the person enters a dwelling without consent and with intent to commit a crime therein.

(B) A person is guilty of burglary in the second degree if the person enters a building without consent and with intent to commit a crime therein, and either:

(1) When, in effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:

(a) Is armed with a deadly weapon or explosive; or

(b) Causes physical injury to any person who is not a participant in the crime; or

(c) Uses or threatens the use of a dangerous instrument; or

(d) Displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or

(2) 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

(3) The entering or remaining occurs in the nighttime.

(C) Burglary in the second degree is a felony punishable by imprisonment for not more than fifteen years, provided, that no person convicted of burglary in the second degree shall be eligible for parole except upon service of not less than one-third of the term of the sentence.

Section (C) of this statute provides that anyone convicted of second degree burglary must serve at least 1/3 of his/her jail time before becoming eligible for parole. If you have an attorney and he/she is successful in getting your charge reduced to a lesser offense, you may be eligible for probation or home confinement. Whether you remain charged with second degree burglary or your attorney can get you a reduced charge, you will be credited for your 2.5 weeks that you served in the county jail. I think it is doubtful that you will receive either probation or home confinement if your charge of second degree burglary stands, however, due to the seriousness of the offense under South Carolina law. It is possible, however, that your attorney can file a motion to suppress evidence in your case, which may effectively "gut" your case so that the prosecutor will be willing or even forced to dismiss the charges altogether.

An accessory to a crime is typically subject to the same punishment as the principal felon in the case, with the exception that in South Carolina, some accessories after the fact (i.e., someone who gives assistance to the principal felon after the crime has been committed, such as a person who hides the felon from the police) are punished based upon the classification that is below the punishment provided for the principal felon (it sounds as though you were an accessory before the fact, however, so this likely isn't applicable).

Here is the text of the statutes for the punishment of accessories to a crime:

SECTION 16-1-40 Accessory [SC ST SEC 16-1-40]

A person who aids in the commission of a felony or is an accessory before the fact in the commission of a felony by counseling, hiring, or otherwise procuring the felony to be committed is guilty of a felony and, upon conviction, must be punished in the manner prescribed for the punishment of the principal felon.

SECTION 16-1-50. Indictment and conviction of accessories. [SC ST SEC 16-1-50]

A person who counsels, hires, or otherwise procures a felony to be committed may be indicted and convicted:

(1) as an accessory before the fact either with the principal felon or after his conviction; or

(2) of a substantive felony, whether the principal felon has or has not been convicted or is or is not amenable to justice, and may be punished as if convicted of being an accessory before the fact.

SECTION 16-1-55. Classification of accessory crimes. [SC ST SEC 16-1-55]

A person who commits the offense of accessory after the fact must be punished based upon the classification below the punishment provided for the principal offense, except for Class A, Class B, and Class C felonies or murder. If the principal offense is a Class A, Class B, or Class C felony or murder, the penalty must be as prescribed for a Class D felony.

With regard to your question about public defenders, there are good and bad ones, just as there are good and bad private attorneys. However, the vast majority of the public defenders I worked with (or, I should say, against) while I was a prosecutor are very good attorneys who have a thorough knowledge of criminal law. Since they devote all of their time to handling criminal cases, they are familiar with the judges, the prosecutors, and the rest of the court system, and because of their familiarity, they can be quite adept at getting a charge either dismissed or reduced. In all honesty, I would trust a public defender to handle my case if I were in your shoes.

I hope this helps. Good luck.

Juliana

Customer: replied 7 years ago.
Even though my charge is Non-Violent? Does'nt the fact that I have a clean background help me in any way? I know I'm full of questions, but for good reason, I have way too much to lose.
Expert:  Juliana replied 7 years ago.

South Carolina law is rather confusing on this point, so let me try to clarify:

Section (A) of the statute I cited above is the non-violent classification, while (B) is the violent classification.

Section (C) requires a person convicted of second offense burglary (violent or non-violent) to serve 1/3 of his/her sentence before becoming eligible for parole or other early release.

However, under Section 24-21-610, Eligibility for Parole, although a person sentenced to imprisonment for a violent crime must serve 1/3 of his/her sentence before becoming eligible for parole, a person convicted of any other crime (including non-violent crimes) must serve at least 1/4 of the prison term before becoming eligible for parole (see below)

SECTION 24-21-610. Eligibility for parole.

In all cases cognizable under this chapter the Board may, upon ten days' written notice to the solicitor and judge who participated in the trial of any prisoner, parole a prisoner convicted of a crime and imprisoned in the state penitentiary, in any jail, or upon the public works of any county who if:

(1) sentenced for not more than thirty years has served at least one-third of the term;

(2) sentenced to life imprisonment or imprisonment for any period in excess of thirty years, has served at least ten years.

If after January 1, 1984, the Board finds that the statewide case classification system provided for in Chapter 23 of this title has been implemented, that an intensive supervision program for parolees who require more than average supervision has been implemented, that a system for the periodic review of all parole cases in order to assess the adequacy of supervisory controls and of parolee participation in rehabilitative programs has been implemented, and that a system of contracted rehabilitative services for parolees is being furnished by public and private agencies, then in all cases cognizable under this chapter the Board may, upon ten days' written notice to the solicitor and judge who participated in the trial of any prisoner, to the victim or victims, if any, of the crime, and to the sheriff of the county where the prisoner resides or will reside, parole a prisoner who if sentenced for a violent crime as defined in Section 16-1-60, has served at least one-third of the term or the mandatory minimum portion of sentence, whichever is longer. For any other crime the prisoner shall have served at least one-fourth of the term of a sentence or if sentenced to life imprisonment or imprisonment for any period in excess of forty years, has served at least ten years.

The section of the burglary statute under which you were charged affects your eligibility for parole, not the actual length of time of your sentence. The result is that you can be sentenced to a maximum of 15 years whether you were charged under (A) or (B), but, the judge will certainly take your record, as well as the facts of the crime you allegedly committed into consideration, and very possibly give you less (maybe even much less) than 15 years. The length of your sentence is up to the judge's discretion, and it is impossible to predict with any degree of certainty at this point, since all judges sentence offenders differently. I do think the fact that you are a non-violent offender will definitely affect the length of time of your sentence, *if* you are convicted under the second degree burglary statute. As I stated earlier, though, an attorney might be successful in getting your charge reduced or even dismissed, so I wouldn't give up hope on that.

I hope you find this information helpful (and that it makes sense). Good luck.

Juliana .