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P. Simmons
P. Simmons, Lawyer
Category: Criminal Law
Satisfied Customers: 32789
Experience:  16 yrs. of experience including criminal law.
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My son is charged with 1st degree burglary after entering a

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My son is charged with 1st degree burglary after entering a residence where he lived for a period of time and then left. The owner of the property died and he entered to get his personal belongings. No one lived with him and no one was in residence. Can he be legally charged with this crime.
Hi, My name is Philip. I am an attorney with over 16 years experience. Hopefully I can help you with your legal question.

Life in prison??

What are his prior offenses?

And was anyone injured as a result of this?
Customer: replied 3 years ago.

His prior offenses were burglary and he served a 10 year sentence. because was considered violent because he stole guns. No one was in the residence, so no one was injured

Thank you ma'am

One more question...for this offense, was he carrying a weapon?
Customer: replied 3 years ago.

No weapons

Thank you ma'am

I want to start with the code...below is the SC law that applies

(A) A person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and either:
(1) when, in effecting entry or while in the dwelling or in immediate flight, he or another participant in the crime:

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

(b) causes physical injury to a 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.

(B) Burglary in the first degree is a felony punishable by life imprisonment. For purposes of this section, "life" means until death. The court, in its discretion, may sentence the defendant to a term of not less than fifteen years.

So the fact he entered at night is, in and of itself, enough to warrant a conviction of 1st degree burglary.

But what you describe is NOT burglary

In order to convict, they must prove

the person enters a dwelling without consent and with intent to commit a crime in the dwelling

So...the prosecution must prove that your son entered the building to commit a crime.

Entering the building without permission is a crime (trespassing)

But retrieving his own property is NOT a crime.

So what you describe is NOT burglary.

All that said, they can charge him with it.

But to convict him of it? They have to prove he intended to commit a crime (like steal property that was not his)

What you describe, it sounds like he is guilty of trespassing and that is it

Please let me know if you have more questions...happy to assist if I can

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