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The Blurred Line Between Trespass and Burglary

Posted on in Criminal Defense

b2ap3_thumbnail_att-nicole.jpgBy: Attorney Nicole Masnica 

Even the more serious forms of criminal trespassing are generally charged as a misdemeanor, carrying no more than a year in jail at the worst. Burglary, however, is at minimum a Class F felony, punishable by up to 12 years and six months in prison. The punishments for these offenses are wildly different, but these Wisconsin offenses themselves can be strikingly similar. The line between trespass and burglary is less clear than most people realize. Both involve entering or remaining in another’s property without consent. The difference may hinge on what the state thinks you were planning to do in there. If you are facing either charge, it is important to seek out a skilled defense attorney who can fight to minimize the legal jeopardy you are in. 

What is the Difference Between Criminal Trespass and Burglary?

First, it is important to note that in Wisconsin, there are different categories of both offenses depending on the type of property unlawfully entered and any offense you allegedly planned to commit inside. The degree of the felony or misdemeanor charged can vary based on a number of factors. That said, the definition of “burglary” may be much wider than you would expect. 

The basic form of burglary simply means entering or remaining in another’s property without consent, with the intention to commit theft or any felony. Thus, the difference between burglary and trespassing hinges on whether you intended to commit a secondary crime during the trespass. As you can imagine, this can be quite difficult to prove in some cases - or quite obvious in others. For example, if a trespasser is caught in a neighbor’s barn holding a can of gas and a book of matches, it may not be particularly difficult for a prosecutor to demonstrate that he intended to commit arson. 

The property unlawfully entered does not have to be a residence to meet the definition of burglary - however, if it is, an aggravated form of burglary may be charged. One example of conduct that does meet the definition of burglary in Wisconsin would be hiding in a store after it closes with the intention of stealing a few items. However, if the same person hiding in the same store after close, simply has a bit of fun playing around in an empty store and then leaves without taking anything, trespass would be the appropriate charge. 

It can be difficult to tell the difference in many cases. If the crime is interrupted at a point when no property has been taken, only the defendant truly knows whether he was planning a burglary or mere trespass. In these ambiguous cases, the state may charge burglary. A skilled criminal defense attorney may be needed to argue that the charge should be reduced to trespassing. 

Call a Wisconsin Criminal Defense Lawyer

If you have been charged with burglary or trespass, you can count on Gimbel, Reilly, Guerin & Brown, LLP to build a strong legal defense. Our experienced Milwaukee criminal defense attorneys are sometimes able to have burglary charges reduced depending on the facts and circumstances of the case. Call us at 414-271-1440 for a confidential consultation to learn more about how we can help you. 






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