What Is The Crime of Residential Burglary In Illinois? 720 ILCS 5/19-3

The law for Residential Burglary in Illinois is found at 720 ILCS 5/19-3. It states, “A person commits residential burglary when he or she knowingly and without authority enters or knowingly and without authority remains within the dwelling place of another, or any part thereof, with the intent to commit therein a felony or theft.”

What is the Difference between Burglary and Residential Burglary?

There are two major differences regarding Burglary and Residential Burglary. The first is the location that was burglarized. Burglary is more general, applying to any closed structure (car, boat, building, etc.) Residential Burglary is more specific, only applying to residences (condo, single family home, townhomes, etc). The second difference between Burglary and Residential Burglary is in the penalties. Residential Burglary is a Class 1 felony, while Burglary is a Class 2 or 3 felony.

What Does “With Intent To Commit Therein A Felony Or Theft” mean?

Most people know what it means to commit a theft. But the definition of Residential Burglary includes entering a location without authority to commit a felony. So if you have no intention of committing a theft, but intent to commit 1) a sex crime, 2) an aggravated battery, 3) an unlawful restraint, or 4) damage a lot of their property, then you can be charged with Residential Burglary.

Is Residential Burglary a Misdemeanor or a Felony?

Residential Burglary is a felony. A felony is a crime that is punishable by more than 1 year of imprisonment. 720 ILCS 5/19-3(b).

What level of felony is Residential Burglary?

Residential Burglary is a class 1 felony. The order of felonies in Illinois from most to least serious goes: Class X, followed by Class 1, Class 2, Class 3, and then Class 4. 720 ILCS 5/19-3(b).

Can I go to Prison? What Is the Sentencing Range for Residential Burglary in Illinois?

Residential Burglary is a class 1 felony, punishable by 4 to 15 years in the Illinois Department of Corrections. 720 ILCS 5/19-3(b).

Can You Get a Sentence of Probation?

Yes and No. Let me explain. The law specifically states that Residential Burglary is a mandatory prison offense, “except as otherwise provided in Section 40-10 of the Substance Use Disorder Act.” 730 ILCS 5/5-5-3(c)(2)(G). Thus, you cannot get regular probation on a Residential Burglary. If you qualify for Section 40 Probation (formerly known as TASC probation), then you could get Section 40 Probation on a Residential Burglary. 20 ILCS 301/40-10. (There is more about Section 40 Probation later on in this guide).

Can I Get Court Supervision?

No. Court supervision is not a possible outcome in felony cases. 730 ILCS 5/5-6-1(c).

How Long Is The Mandatory Supervised Release Or Parole Period?

For Class 1 felony residential burglary, the mandatory supervised release period is 1 year. 730 ILCS 5/5-8-1(d)(2).

Can I Possess A Gun If I Am Convicted Of Residential Burglary?

No. In Illinois, people who have been convicted of a felony cannot possess guns. See my Unlawful Possession of a Weapon by a Felon guide.

What Is The Extended Term Sentencing Range? 730 ILCS 5/5-4.5-30

Under Illinois’ extended sentencing guidelines, if you have been convicted of a felony in the last 10 years, and that felony was of the same class or worse when compared to your current charge, then the maximum allowable sentence is doubled.  730 ILCS 5/5-5-3.2(b). That means that the extended sentencing range for a class 1 felony residential burglary is 4 to 30 years IDOC (730 ILCS 5/5-4.5-30(a)).

What Percentage of Your Sentence Will You Serve? 730 ILCS 5/3-6-3(a)(2.1)

Residential Burglary is a 50% sentence. Illinois Truth-In-Sentencing law states: “the rules and regulations shall provide that a prisoner who is serving a term of imprisonment shall receive one day of sentence credit for each day of his or her sentence of imprisonment.” 730 ILCS 5/3-6-3(a)(2.1). So if you received the imprisonment term of 2 year in the Illinois Department of Corrections, the most you would actually serve is 1 year assuming you do not receive any other credits.

What Other Things Should I Know If I Suspect That Police Are Investigating Me?

Police sometimes call suspects to ask them if they could come down to the police station and “answer some questions about an incident that happened.” This is an attempt to gather evidence against you. As with any ongoing criminal investigation, you have the right to a lawyer and the right to remain silent. DO NOT TALK TO ANYONE about an ongoing criminal investigation. #commonsense; #notlegaladvice.

How To Keep A Residential Burglary Case Off Your Record?

There are several ways to keep a conviction for residential burglary case off your criminal record. Here are some of the ways:

How to win at Trial?

Challenge that “YOU” committed the crime.

If the police did not detain you inside of the residence or coming out of the residence, it will be very difficult to prove that you were the individual who entered without an eyewitness or surveillance video. Even if the police locate the stolen property later on in your home or car, the crime of possession of stolen property is not the same as residential burglary. The State may have failed to prove that you or someone you are accountable for actually entered the home. People buy things from the Facebook Marketplace or Craiglist all the time. There is no indication to the re-buyer that an item was purchased correctly or stolen.

Challenge that you did not have “criminal intent.”

The State must prove that you intended to either 1) commit a theft, or 2) commit a felony. If your sole reason for going into the location was to find a dry place to sleep, that is not a Burglary. It may be a criminal trespass to property, but it is not a burglary. Proving what is in someone’s mind can be done by the words they say and the actions they do. If those two things align with someone seeking shelter, you may have a good defense on your hands.

Challenge that the location is a “residence.”

Someone must actually live in the location that is being burglarized for it to be considered a residence. So if the last tenant of an apartment has already moved out, and the new tenant has not arrived, then this might just be a building and not be a residence. The line between building and residence gets really blurry when determining whether a detached garage/shed/barn is considered a “residence.”

How to win at Motion?

If there was no probable cause to stop and/or search you, a motion to suppress might be the solution. A criminal defense attorney can challenge the lawfulness of the stop or search. If the Court finds that it was a bad stop or a bad search, the Court can prevent the State from using what was recovered from the bad stop or search as evidence. This could result in a dismissal of your case.

How to Avoid a Conviction by Completing Second Chance Probation. What is Second Chance Probation? (730 ILCS 5/5-6-3.4)

Before we get too far, this special probation is not available for Residential Burglary. The Prosecutor must agree to a reduction to Burglary. People charged with Burglary who have no prior felony convictions are eligible for second chance probation. Second Chance Probation is a great way to keep a felony conviction off your criminal history. Here are the minimum requirements of the program:

• 24 Months of Probation;
• 30 hours of Community Service;
• Remaining free from controlled (non-prescribed) substances which is monitored by random drug testing; and
• Completion of a Drug Abuse Evaluation and following any recommended treatment.

Second Chance Probation does require the prosecutor’s consent (so be nice to your assistant state’s attorney). A person can only get Second Chance Probation once every 4 years. 730 ILCS 5/5-6-3.4(h). If you plead guilty, are sentenced to 2nd Chance Probation, and successfully complete the 24 months of probation, the felony case would be dismissed (and then you can expunge it!).

How to avoid a Conviction by probation under the Substance Use Disorder Act (Previously TASC Probation – 20 ILCS 301/40-10)?

Under the Substance Use Disorder Act, a person can be sentenced to treatment as a condition of probation for a Residential Burglary case. Although a conviction initially enters against you, the good news is that “upon successful fulfillment of the terms and conditions of probation the court shall discharge the person from probation. If the person has not previously been convicted of any felony offense and has not previously been granted a vacation of judgment under this Section, upon motion, the court shall vacate the judgment of conviction and dismiss the criminal proceedings against him or her.” 20 ILCS 301/40-10(e).

How to avoid a Conviction Through Diversion or Deferred Prosecution Programs?

Many counties have diversion or deferred prosecution programs which are alternatives to the criminal justice system. Essentially, you and the prosecutor enter into an agreement that if you comply with the terms of the program (which usually include treatment, classes, and/or community service) the case that brought you to court would be dismissed. If the prosecutor is offering a diversion program, accepting and complying with the program is almost always the best possible result.

How to Avoid a Conviction Through a Plea Agreement (Reduction on the Charge)?

Although rare, prosecutors sometimes clear backlogs and move cases by giving defendants “a bargain.” A reduction from a Residential Burglary to 2nd Chance Probation on a Burglary is a very good disposition. These cases could also be reduced to Theft, Possession of Stolen Property, Criminal Damage to Property, Criminal Trespass to Residence, or Criminal Trespass to Property.

Other Theft Crime Guides

If you are looking for information about:

• Possession of Stolen Motor Vehicle cases, then check out our guide to Possession of Stolen Motor Vehicle cases in Illinois.
• Retail Theft cases, then check out our guide to Retail Theft cases in Illinois.
• Burglary cases, then check out our guide to Burglary cases in Illinois.
• Possession of Burglary Tools cases, then check out our guide to Possession of Burglary Tools cases in Illinois.

Hire Illinois Residential Burglary Lawyer Clyde Guilamo

I offer this Illinois Residential Burglary guide as free legal education. #notlegaladvice. If you have specific questions about your case, call me today for a free consultation: