Burglary involves the breaking and entering into a building in order to commit a crime or when a person actually commits a crime. When the building is a dwelling – i.e. a place suitable for living – sentencing for the burglary offense gets more significant. For one, the offender faces either a presumptive commitment or a presumptive probation. But, even on presumptive probation cases, statutes mandate that the offender serve time in custody – in a local jail, compared to a state prison facility.
For instance, a second degree burglary of a dwelling – when the house is unoccupied – is a presumptive probationary outcome for first time offenders. Under Minn. Stat. 609.583, this still requires a minimum of 90-days to be served as a condition of probation. This is required even on stays of execution – in which a pronounces sentence of days to be served are not executed, but instead stayed for the period of probation.
What’s more, the offender can still be sentenced for any subsequent crime committed during the burglary. So, in theory, if the offender commits an assault during the burglary, a conviction and sentence for that can also stand.
The statutory minimum under 609.583 can be waived in whole or in part by the Court when restitution or community work service is ordered. This is a critical aspect of the statute that can make a meaningful and significant difference for the defendant.
This mandate is often used by prosecutors to leverage a plea with an offer of less than 90 days of jail. But, with a strategic approach, a first time offender facing burglary sentencing can avoid this draconian statutory minimum by being proactive with restitution or a willingness to serve hours of community work service in lieu of the jail time. This makes the State’s offer less beneficial when you understand how to avoid this in the first place.