(a) A person is guilty of burglary if he enters or surreptitiously remains in any habitable property, building, or a separately secured or occupied portion thereof, or if he enters or surreptitiously remains in any School as defined in § 37.10(e) of this Chapter, with intent to commit a crime therein, unless the premises are at the time open to the public or the defendant is licensed or privileged to enter, or a person is guilty of burglary if he enters or surreptitiously remains in any motor vehicle, semi-trailer, trailer, truck tractor, vehicle combination, motor bus, motor truck, or vehicle, with intent to commit a crime therein. It is an affirmative defense to prosecution for burglary that the property, or building, or motor vehicle was abandoned. (b) Burglary is a felony of the second degree. In the case of burglary as a felony of the second degree, the court shall impose a sentence of
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imprisonment of a minimum term of five (5) years, and may impose a maximum term of up to ten (10) years; the minimum term imposed shall not be suspended nor may probation be imposed in lieu of the minimum term nor shall parole or work release be granted before completion of the minimum term. The sentence shall include a special parole term of not less than three (3) years, in addition to such term of imprisonment. Provided, however, that in the case of an offender not previously convicted of a felony, the court may sentence the offender to not more than five (5) years imprisonment as a third degree felony conviction, and the provisions of this Subsection prohibiting probation, suspension, parole or work release shall not be applicable to such offender. (c) A second or subsequent offense of burglary to a school shall be a felony of the first degree. In the case of a second or subsequent conviction of burglary committed to a school as a felony of the first degree, the court shall impose a sentence of imprisonment of a minimum term of ten (10) years, and may impose a maximum term of up to twenty (20) years; the minimum term imposed shall not be suspended nor may probation be imposed in lieu of the minimum term nor shall parole or work release be granted before completion of the minimum term. The sentence shall include a special parole term of not less than three (3) years in addition to such term of imprisonment. However, if the offender is under the age of eighteen years the court shall have the discretion to suspend all or a portion of the minimum sentence, and may encourage the Balanced Approach Restorative Justice Process. SOURCE: G.P.C. §§ 459-464; *M.P.C. § 221.1; Cal. §§ 1050-1056 (1971); Mass. ch. 266, §§ 9-12; N.J. § 2C:18-2. Enacted 1977; Subsection (b) was repealed and reenacted by P.L. 14-143, eff. 10/01/78. Amended by P.L. 30-121:2 (Apr. 1, 2010). P.L. 32-162:4 (May 23, 2014) amended subsections (a) and (b) and added subsection (c). CROSS-REFERENCES: §§ 13.10 and 13.60; § 1.22. COMMENT: The Model Penal Code included a § 37.20(c) which has been excluded in this law. The exclusion is significant. That excluded Subsection (c) provided that a person may not be convicted for both burglary and for the offense which it was his intent to commit upon entry to the premises, nor for an attempt to commit that offense. § 1.22 of this Code does not appear to prohibit such multiple conviction where burglary is not included within such other offense, whatever it may be, nor is burglary a form of conspiracy to commit this other offense nor is burglary defined to prohibit a designated conduct generally while the other offense is specific, nor is burglary a continuing course of conduct related to the other offense. Further, the Legislature has a distinct interest in prohibiting both burglary and whatever other offense the burglar may have in mind. There is an equally great public interest in the deterrence of rape,
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regardless of whether it is committed in or out of a dwelling or other habitable building, and the crime of burglary. Similarly, it is equally in the public interest to prevent burglary and thefts. Therefore, it is not incongruous to convict a person of both burglary and the offense he came to commit, assuming the facts exist to prove those offenses.