Under common law, a burglary was defined as the breaking and entering of a dwelling of another at night with an intent to commit a felony therein. Over the years, state legislatures have refined the definition of burglary. For the most part, states have eliminated the requirement that the breaking and entering occur at night, and have added language making it a burglary to unlawfully remain on another’s property with the intent to commit a crime.
Arizona has three burglary statutes.
- Burglary in the third degree: Entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein.
- Burglary in the second degree: Entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein.
- Burglary in the first degree: Commit a second- or third-degree burglary while in possession of a deadly weapon or dangerous instrument.
Recently, the U.S. Supreme Court heard oral argument in a case discussing Michigan’s burglary statute. Specifically, the case required the Court determine whether the prosecution must prove the defendant’s “intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, or only that the defendant formed such intent while ‘remaining in’ the building or structure.”
The case arose in the context of a sentencing enhancement under the Armed Career Criminals Act (ACCA), which provides for an escalating series of punishments for those who have multiple “violent felony” convictions. The defendant was convicted of third-degree home invasion, which was defined as “breaking and entering a dwelling and while entering or present in the dwelling, committing a misdemeanor.”
The defendant argued that the definition of third-degree home invasion should not be considered a “violent felony” because the Michigan statute did not require that a defendant have the intent to commit a crime upon entry. In other words, the defendant claimed that under the Michigan law, a defendant could be found guilty of third-degree home invasion if he develops the intent to commit a crime after breaking and entering, and that as such under federal law, such a crime would not be considered a “burglary.”
The lower court rejected the defendant’s argument, determining that the third-degree home invasion statute was a “violent felony” under the ACCA, and sentenced the defendant to 204 months of incarceration. The defendant appealed the case all the way up to the Supreme Court. The case was argued on April 24, 2019, and an opinion is expected by the end of the year.
The case is important because it allows the Court to discuss the required elements of burglary. And while the case arose in Michigan, the Court’s decision would clarify federal law on the issue, and would be binding on courts across the country.
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