First-degree burglary is the most serious form of burglary in every state: unlawful entry into a dwelling or occupied structure with the intent to commit a crime inside. It is a felony everywhere, with prison terms that commonly run from a few years to 25, and a conviction leaves consequences that reach well beyond the sentence itself, including a permanent federal firearms ban and, for noncitizens, likely deportation.
What Makes a Burglary “First Degree”
Burglary is graded by where it happens and who is there. The factor that pushes the charge to first degree, in most states, is that the target was a dwelling — a house, apartment, mobile home, houseboat, or similar residence, often including attached structures like garages. Some states instead elevate the charge whenever a person is physically present inside during the entry, whether the building is a home or a business. Either way, the connection to occupied space is what separates first-degree burglary from breaking into a vacant warehouse.
A point that surprises many defendants: the resident does not have to be home. A house is still a dwelling when the occupant is at work or on vacation. The dwelling status attaches to the building, not to who is inside at that moment.
The Three Elements Prosecutors Must Prove
Every element has to be proven beyond a reasonable doubt. If even one fails, the charge fails.
Unlawful Entry
The defendant entered a building or structure without permission. No force is required. Walking through an unlocked door without consent counts. In many jurisdictions, even partial intrusion qualifies — reaching a hand through a window opening can satisfy the entry requirement and turn an attempt into a completed burglary.1Justia. Burglary Laws The entry must be intentional, so genuinely wandering into the wrong apartment is not burglary.
Intent to Commit a Crime Inside
The person must have intended to commit another offense at the moment of entry. Theft is the most common intended crime, but it can be assault, vandalism, or anything else. The intended crime does not have to actually occur; someone who enters planning to steal but is scared off before taking anything has already completed the burglary. Prosecutors typically prove intent through circumstantial evidence: burglary tools, prior surveillance of the property, statements to others, or the absence of any legitimate reason to be there.
Dwelling or Occupied Structure
The prosecution must show the building fits the category that elevates the offense. That means either a residence, or, in some states, a structure where someone was present during the entry. Without this element, a first-degree charge should drop to a lower-degree burglary.
How It Differs From Robbery and Trespassing
These three crimes get confused constantly, and the differences change what a defendant is facing.
- Trespassing is entering or remaining on property without permission. No criminal intent inside is required. It is usually a misdemeanor.
- Burglary is unlawful entry plus intent to commit a crime inside. It can happen in an empty building. No confrontation is needed.
- Robbery is taking property directly from a person through force or intimidation. The victim must be present and threatened or harmed. Courts generally treat robbery as more serious than burglary because of the direct violence.
First-degree burglary of an occupied home can feel close to robbery, but the legal line holds: burglary is defined by the entry and the intent, robbery by the face-to-face taking.
Prison Time, Fines, and Restitution
Sentences for first-degree burglary typically range from a few years up to 25, depending on the state and the circumstances. Aggravating facts — an occupant at home, a weapon, an injury — push cases toward the top of that range, and some states impose mandatory minimums when a weapon is involved or someone is hurt.
Fines are substantial. Statutory maximums commonly fall between $10,000 and $30,000. On top of the fine, courts routinely order restitution to reimburse victims for documented losses. Under federal law, restitution can cover the value of damaged or stolen property, medical costs, lost income, and expenses the victim incurred in the prosecution.2Office of the Law Revision Counsel. 18 US Code 3663A – Mandatory Restitution to Victims of Certain Crimes State restitution laws work along the same lines, with judges relying on repair estimates, receipts, and victim statements to set the amount.3U.S. Department of Justice. Restitution Process
Probation is uncommon for first-degree burglary but not impossible, particularly for first-time offenders with mitigating circumstances. When it is granted, conditions tend to be strict: regular check-ins, community service, counseling, curfews, sometimes electronic monitoring. Violating any condition typically means serving the original prison sentence.
What Pushes a Sentence Higher
Several factors can move a first-degree burglary sentence well above the base range, and they stack.
- Prior convictions. Previous felonies, especially prior burglaries, drive sentences up. Many states have habitual offender or three-strikes laws that can double a sentence on a second serious felony and impose 25 years to life on a third.
- Weapons. Carrying a firearm or other weapon during the burglary usually adds years to the base sentence or triggers a mandatory minimum.
- Injury to an occupant. Physical harm to someone inside can push the offense into a category with penalties similar to violent assault charges.
- Vulnerable victims. Burglaries targeting elderly or disabled residents often carry additional enhancements.
A defendant with two prior strikes who burglarizes an occupied home while armed can face a sentence measured in decades rather than years.
Common Defenses
Defense strategies attack the elements one at a time.
Challenging Unlawful Entry
The most direct defense is that the defendant had permission to be there. Text messages, call records, or testimony from the property owner can establish authorization. A defense may also argue the defendant reasonably believed they had a right to enter — a former tenant returning for belongings, for example.
Disputing Criminal Intent
Without proof of intent to commit a crime inside, there is no burglary. Defense attorneys offer alternative explanations for the entry: seeking shelter, confusion about the address, or a non-criminal purpose. Alibi evidence and character witnesses can undercut the prosecution’s story.
Intoxication
Because burglary requires specific intent, extreme intoxication can be a defense. The argument is that the defendant was too impaired to form the required intent. In most states, voluntary intoxication is an affirmative defense, so the defendant bears the burden of proving the impairment.4Justia. The Intoxication Defense in Criminal Law Cases A successful intoxication defense rarely produces a full acquittal; more often it reduces the charge to trespassing or a lower-degree burglary.
Disputing Dwelling or Occupancy
If the first-degree charge rests on the building being a dwelling or being occupied, the defense can attack that classification. Abandoned or condemned buildings may not qualify, and if the charge hinges on someone being present, the defense can show the building was empty. Knocking out this element does not eliminate the charge, but it can drop it to a lower degree with less severe penalties.
Consequences That Outlast the Sentence
The prison term is only the start. A first-degree burglary conviction creates a felony record that reshapes work, housing, and legal status in ways many defendants do not anticipate when they enter a plea.
Firearms
Federal law permanently prohibits anyone convicted of a crime punishable by more than one year of imprisonment from possessing firearms or ammunition.5Office of the Law Revision Counsel. 18 US Code 922 – Unlawful Acts First-degree burglary clears that threshold in every state. The ban applies regardless of whether the actual sentence imposed was less than a year, and regardless of whether the sentence has been completed.
Immigration
For noncitizens, the consequences can be severe. Federal immigration law defines a burglary offense with a sentence of at least one year as an “aggravated felony.”6Legal Information Institute. Aggravated Felony From 8 USC 1101(a)(43) A noncitizen convicted of an aggravated felony after admission to the United States is deportable.7Office of the Law Revision Counsel. 8 US Code 1227 – Deportable Aliens Burglary of a dwelling is also often classified as a crime involving moral turpitude, which can independently trigger deportation or block future visas and green cards. Any noncitizen facing this charge should consult an immigration attorney before accepting a plea.
Employment, Housing, and Licensing
A felony conviction shows up on standard background checks, and residential burglary is one of the harder offenses to explain. Employers in jobs involving trust, money handling, or access to people’s homes will usually pass on an applicant with this record. Landlords frequently reject applicants with felony histories. Licensed professions — healthcare, law, education, finance, real estate — impose character requirements that a first-degree burglary conviction can fail, and some licensing boards can revoke an existing license on conviction, not just deny new ones.
Voting Rights
The effect on voting varies by state. In two states and the District of Columbia, felons never lose the right to vote. In 23 states, voting rights are automatically restored upon release from prison. Another 15 states restore rights after completion of parole or probation. The remaining states impose indefinite restrictions, require a governor’s pardon, or add waiting periods before restoration.8National Conference of State Legislatures. Restoration of Voting Rights for Felons
Expungement and Record Sealing
A handful of states allow first-degree burglary convictions to be expunged or sealed, but eligibility is limited. Where it is available, waiting periods of 10 to 15 years after completing the sentence are common, and the process usually requires a petition demonstrating rehabilitation and a clean record in the interim.9National Conference of State Legislatures. Record Clearing by Offense Many states exclude violent or first-degree felonies from expungement entirely. Even a sealed record may remain visible to law enforcement and certain government agencies.