Yes, burglary is a felony in almost every case. Every state treats first-degree burglary as a felony, most states classify all degrees of burglary as felonies, and only a handful allow the lowest-level burglary offenses to be charged as misdemeanors at the prosecutor’s discretion. A felony burglary conviction can carry years in state prison, fines reaching $10,000 or more, and permanent consequences like the loss of firearm rights.
What Makes an Entry a Burglary
Burglary has two elements, and both have to exist at the same moment: entering a building or structure without authorization, and doing so with the intent to commit a crime inside. If you walk into an unlocked building out of curiosity and only decide to steal something after you’re already in, that doesn’t fit the legal definition of burglary. It might support theft or trespass charges, but not burglary.
The Model Penal Code, which shaped most state burglary statutes, defines burglary as entering a building or occupied structure with the purpose of committing a crime inside, unless the premises are open to the public or the person is otherwise allowed to enter.1University of Pennsylvania Law. Model Penal Code
A few points trip people up. “Entry” doesn’t require breaking anything. Pushing open an unlocked door, climbing through an open window, or even reaching a hand through an opening can qualify. The “structure” doesn’t have to be a house: commercial buildings, warehouses, garages, and in some states vehicles all count. And while theft is the most common intended crime, burglary covers entry with intent to commit any crime inside, including assault, vandalism, or arson.
Why Burglary Is Almost Always a Felony
Burglary combines a property crime (unauthorized entry) with the threat of a more serious offense happening inside. Legislatures treat that combination as inherently dangerous, especially when someone enters a home where residents could be present. That’s why even an unsuccessful burglary where nothing is stolen still carries felony penalties in most states.
Under the Model Penal Code, burglary is always a felony. It’s a second-degree felony when it happens in a dwelling at night, when the burglar injures or attempts to injure anyone, or when the burglar carries explosives or a deadly weapon. All other burglaries are third-degree felonies.1University of Pennsylvania Law. Model Penal Code Most states follow this general structure, though the degree labels and penalty ranges vary.
First-Degree Burglary
First-degree burglary generally involves entering an occupied dwelling, often at night or with a weapon. Every state treats it as a felony. Prison sentences commonly range from about 5 to 25 years depending on jurisdiction and aggravating factors. In states with “three strikes” or habitual offender laws, a residential burglary conviction can count as a strike that dramatically increases sentencing on any future felony conviction.
Second- and Third-Degree Burglary
Lower degrees of burglary typically cover entries into commercial buildings, unoccupied structures, or situations without weapons or injuries. These still carry felony penalties in most states, with prison ranges commonly falling between 1 and 15 years. Third-degree burglary, where states recognize it, carries the lightest penalties and is the degree most likely to be eligible for probation or, in a few states, misdemeanor treatment.
When Burglary Can Be a Misdemeanor
Some states classify the least serious forms of burglary as wobbler offenses, meaning prosecutors can file them as either felonies or misdemeanors. This usually applies to third-degree burglary, or second-degree burglary of a commercial building where no one was present, no weapon was involved, and nothing was taken or damaged. The prosecutor’s decision generally turns on the specific facts and the defendant’s criminal history.
Even as a misdemeanor, burglary is serious. A misdemeanor burglary conviction can carry up to a year in county jail, fines, probation, and a criminal record that shows up on background checks. Prosecutors can often refile wobbler charges as felonies if new evidence emerges or if the defendant violates a plea agreement.
What Pushes the Charge Up or Down
The specific facts drive where a burglary case lands on the severity spectrum. Prosecutors and judges weigh several factors when deciding what to charge and how to sentence.
- Type of structure. Entering a home is treated far more seriously than entering a commercial building or storage unit, because of the heightened risk of confrontation with occupants.
- Whether anyone was inside. If the building was occupied at the time of entry, the charge and penalties increase. Some states treat burglary of an occupied dwelling as a violent felony regardless of whether anyone was actually harmed.
- Weapons. Carrying a weapon during a burglary is an aggravating factor in every state. Under the MPC, it automatically elevates the offense to a second-degree felony.1University of Pennsylvania Law. Model Penal Code
- Injury. If someone is hurt during the burglary, the charge jumps to the highest available degree, and additional assault charges are likely.
- Prior record. A defendant with previous burglary or felony convictions faces harsher charges and longer sentences, and habitual offender statutes can multiply the maximum prison term.
- Time of day. Some states still treat nighttime burglaries more severely, a holdover from common law.
Possession of burglary tools, such as lock picks, pry bars, or slim jims, can bring a separate charge even if the burglary itself was never completed. Most states treat possession of burglary tools as a misdemeanor, but it signals intent and strengthens the prosecution’s case on the burglary charge.
Federal Burglary of a Bank
Burglary is predominantly a state crime, but federal law covers one important category: banks and financial institutions. Under 18 U.S.C. ยง 2113, entering or attempting to enter a bank, credit union, or savings and loan with intent to commit a felony or theft inside carries a maximum sentence of 20 years in federal prison.2GovInfo. 18 USC 2113
Penalties escalate with aggravating factors. If the burglar assaults anyone or uses a dangerous weapon, the maximum jumps to 25 years. If someone is killed or kidnapped during the offense, the statute imposes a mandatory minimum of 10 years and a maximum of life in prison or death.2GovInfo. 18 USC 2113
Federal courts can also order mandatory restitution when a burglary conviction involves property offenses or crimes of violence with identifiable victims who suffered financial losses.3Office of the Law Revision Counsel. 18 U.S. Code 3663A – Mandatory Restitution to Victims of Certain Crimes Most state courts have similar restitution authority, and in many states restitution is mandatory for burglary convictions.
What a Felony Burglary Conviction Costs Beyond Prison
The prison sentence is only the beginning. A felony burglary conviction creates obstacles that follow you for years or decades after release.
Firearms
Federal law makes it illegal for anyone convicted of a crime punishable by more than one year of imprisonment to possess, receive, or transport any firearm or ammunition. The ban is permanent unless the conviction is expunged or the person receives a presidential pardon.4Office of the Law Revision Counsel. 18 USC 922 Virtually all felony burglary convictions clear that threshold, so a felony burglary conviction effectively strips gun rights.
Voting Rights
Only three jurisdictions (Maine, Vermont, and Washington, D.C.) allow people to vote while incarcerated for a felony. In 23 states, voting rights are automatically restored upon release. In 15 states, rights are restored only after completing parole and probation, sometimes with additional requirements like paying outstanding fines. In 10 states, certain felony convictions can result in indefinite loss of voting rights or require a governor’s pardon.5National Conference of State Legislatures. Restoration of Voting Rights for Felons
Employment
A felony burglary conviction will appear on criminal background checks and can disqualify you from many jobs. The federal Fair Chance to Compete for Jobs Act bars federal agencies and contractors from asking about criminal history before a conditional job offer, and many states have adopted similar “ban the box” laws for private employers. Employers can still consider criminal history after a conditional offer. Federal guidance instructs them to weigh the seriousness of the offense, how much time has passed, and the nature of the job.6U.S. Equal Employment Opportunity Commission. Arrest and Conviction Records – Resources for Job Seekers, Workers Some industries, including aviation security, are subject to federal laws that flatly prohibit hiring people with certain felony convictions.
Professional Licensing and Immigration
Many licensing boards for healthcare, law, education, finance, and real estate can suspend or revoke a professional license after a felony conviction. Boards typically weigh the nature of the crime, its relevance to the profession, and any evidence of rehabilitation. A burglary conviction involving dishonesty creates an uphill fight in any regulated profession.
For noncitizens, a felony burglary conviction can trigger deportation. Federal immigration law treats crimes involving theft, dishonesty, or violence as potential grounds for removal. A burglary conviction that carries a sentence of one year or more can be classified as an aggravated felony for immigration purposes, which eliminates most forms of relief from deportation.
How Burglary Differs From Trespass, Theft, and Robbery
Burglary gets confused with related offenses, but the distinctions matter because they carry very different penalties.
Trespass is entering or remaining on property without permission. It doesn’t require intent to commit any other crime. A person who cuts through a fenced lot as a shortcut commits trespass, not burglary. Trespass is typically a misdemeanor, and in some cases just a civil infraction. The moment you add intent to commit a crime inside, the same entry becomes burglary.
Theft is taking someone’s property with the intent to permanently keep it. Theft is frequently the crime a burglar intends to commit, but burglary doesn’t require that anything actually be stolen. You can be convicted of burglary even if you were caught before taking anything, as long as you entered with the required intent. Shoplifting from an open store is theft, not burglary, because there’s no unauthorized entry.
Robbery involves taking property directly from a person using force or intimidation. The critical difference from burglary is the face-to-face confrontation. Robbery doesn’t require entering a building, and burglary doesn’t require taking anything from a person. When both happen together, such as breaking into an occupied home and demanding valuables at gunpoint, expect separate charges for each.