Sentencing in Oklahoma 9th Edition

A sentencing resource for attorneys and judges

recent posts

    about

    Chapter 11. Burglary and trespass

    11.1 burglary with explosives

    OSMA24 Class A1, 21 O.S.Supp.2024 § 20C

    1. 1st, or unenhanced, offense
      1. minimum: 20 years imprisonment
      2. maximum: 50 years imprisonment
      3. ≤ $10,000 fine1
    2. After 1 prior felony conviction
      1. minimum: 20 years imprisonment
      2. maximum: life imprisonment
      3. ≤ $10,000 fine2
    3. After 2 or more prior felony convictions
      1. minimum: 20 years imprisonment
      2. maximum: life imprisonment
      3. ≤ $10,000 fine3

    11.2 1st degree burglary

    OSMA24 Class B1, 21 O.S.Supp.2024 § 20F

    1. 1st, or unenhanced, offense
      1. minimum: 7 years imprisonment
      2. maximum: 20 years imprisonment
      3. ≤ $10,000 fine4
    2. After 1 prior felony conviction
      1. minimum: 10 years imprisonment
      2. maximum: life imprisonment
      3. ≤ $10,000 fine
    3. After 2 or more prior felony convictions
      1. minimum: 20 years imprisonment
      2. maximum: life imprisonment
      3. ≤ $10,000 fine

    11.3 2nd degree burglary

    OSMA24 Class C1, 21 O.S.Supp.2024 § 20L

    1. 1st, or unenhanced, offense
      1. ≤ 7 years imprisonment
      2. ≤ $10,000 fine5
    2. After 1 prior felony conviction
      1. minimum: 2 years imprisonment
      2. maximum: life imprisonment
      3. ≤ $10,000 fine
    3. After 2 or more prior felony convictions
      1. minimum: 4 years imprisonment
      2. maximum: life imprisonment
      3. ≤ $10,000 fine

    11.4 3rd degree burglary

    OSMA24 Class D1, 21 O.S.Supp.2024 § 20N

    1. 1st, or unenhanced, offense
      1. ≤ 5 years imprisonment
      2. ≤ $5,000 fine6
    2. After 1 prior felony conviction
      1. ≤ 10 years imprisonment
      2. ≤ $ 5,000 fine
    3. After 2 or more prior felony convictions
      1. minimum: 4 years imprisonment
      2. maximum: life imprisonment
      3. ≤ $ 5,000 fine

    11.5 larceny, burglary, or theft of controlled drug

    OSMA24 Class C2, 21 O.S.Supp.2024 § 20M

    1. 1st, or unenhanced, offense
      1. ≤ 10 years imprisonment
      2. ≤ $10,0007
    2. After 1 prior felony conviction
      1. minimum: 2 years imprisonment
      2. maximum: life imprisonment
      3. ≤ $10,000 fine
    3. After 2 or more prior felony convictions
      • minimum: 4 years imprisonment
      • maximum: life imprisonment
      • ≤ $10,000 fine
    4. Second or subsequent violation of § 2-403(A)8
      1. minimum: 10 years imprisonment
      2. maximum: life imprisonment
      3. ≤ $10,000 fine
      4. no suspended, deferred or probation
    5. Second violation of § 2-403(A), after 1 (non-2-403(A)) prior felony conviction
      1. minimum: 20 years imprisonment
      2. maximum: life imprisonment
      3. ≤ $10,000 fine
      4. no suspended, deferred or probation
    6. Second violation of § 2-403(A), after 2 or more (non-2-403(A)) felony convictions
      1. minimum: 30 years imprisonment
      2. maximum: life imprisonment
      3. ≤ $10,000 fine
      4. no suspended, deferred or probation

    11.6 unlawful entry with intent to commit felony, larceny, or malicious mischief

    11.7 breaking and entering without intent to commit a crime

    OSMA24 Class D2, 21 O.S.Supp.2024 § 20P

    1. ≤ 1 year in jail
    2. ≤ $500 fine
    3. or both fine and imprisonment9

    11.8 possess tools after burglary conviction with intent to commit crime

    1. 1st, or unenhanced, offense
      1. ≤ 2 years imprisonment
      2. ≤ $1000 fine
      3. or both fine and imprisonment
    2. After 1 prior felony conviction (in addition to former burglary conviction element)
      1. ≤ 10 years imprisonment
      2. ≤ $1,000 fine
      3. or both fine and imprisonment
    3. After 2 prior felony convictions
      1. minimum: 4 years imprisonment
      2. maximum: life imprisonment
      3. ≤ $1,000 fine

    11.9 possess implements with intent to commit felony, larceny, or malicious mischief

    1. ≤ 1 year in jail
    2. ≤ $500 fine
    3. or both fine and imprisonment10

    11.10 trespass

    1. after expressly forbidden or without permission (posting land no longer required)
      1. ≤ $250 fine
    2. and commits or attempts to commit waste, theft, or damage 
      1. minimum: 30 days in jail
      2. maximum: 6 months in jail
      3. or $50-500 fine
      4. or both such fine and imprisonment11

    References

    1. 21 O.S.2021, sect. 1441 ↩︎
    2. 21 O.S.2021, sect. 51.1(A); 57 O.S.2021, sect. 571(2) ↩︎
    3. 21 O.S.2021, sect. 51.1(B) ↩︎
    4. 21 O.S.2021, sect. 1436 ↩︎
    5. 21 O.S.2021, sect. 1436 ↩︎
    6. 21 O.S.2021, sect. 1435 ↩︎
    7. 63 O.S.2021, sect. 2-403(A) ↩︎
    8. 63 O.S.2021, sect. 2-403(A) ↩︎
    9. 21 O.S.2021, sect. 1438. Derived from the general misdemeanor penalty at 21 O.S.2021, sect. 10 ↩︎
    10. 21 O.S.2021, sect. 1438 ↩︎
    11. 21 O.S.2021, sect. 1835 ↩︎

    Raw footnotes from SNOK9MSS

    47921 O.S.2021, § 1441

    48021 O.S.2021, § 51.1(A)(1); 57 O.S.2021, § 571(2). Because burglary with explosives always carries a 20 year minimum sentence, the usual enhanced range of 10 years to life imprisonment for a 571 offense after 1 prior felony conviction is ignored as contrary to the legislative intent of § 1441.

    48121 O.S.2021, § 51.1(B); 57 O.S.2021, § 571(2)

    48221 O.S.2021, § 1436

    48321 O.S.2021, § 51.1(A)(1); 57 O.S.2021, § 571(2)

    48421 O.S.2021, § 51.1(B); 57 O.S.2021, § 571(2)

    48521 O.S.2021, § 1436

    48621 O.S.2021, § 51.1(A)(2)

    48721 O.S.2021, § 51.1(C)

    488 O.S.L.2018, Ch. 129, amending 21 O.S.2021, § 1435 (effective Nov. 1, 2018), created 3rd degree burglary and defined its elements as breaking and entering any automobile, truck, trailer or vessel of another, in which any property is kept, with intent to steal any property therein or to commit any felony. The elements of 3rd degree burglary arguably overlap with some misdemeanor unlawful entry of a structure with intent to commit a crime, and if property is kept there, may constitute the greater crime of 3rd degree burglary.

    489O.S.L.2022, Ch. 245, amending 21 O.S.2021, §1436

    49021 O.S.2021, § 51.1(A)(3)

    49121 O.S.2021, § 51.1(C)

    49263 O.S.2021, § 2-403(A)

    49321 O.S.2021, §§ 51.1(A)(2)

    49421 O.S.2021, § 51.1(C)

    49563 O.S.2021, § 2-403(A)

    496The penalty here is derived from the penalty for a second or subsequent 2-403(A) violation by doubling the minimum as provided in 21 O.S.2021, § 51.1(A)(2)

    497The penalty here is derived from the penalty for a second or subsequent 2-403(A) violation by tripling the minimum as provided in 21 O.S.2021, § 51.1(C)

    49821 O.S.2021, § 1438. The penalty is the general misdemeanor penalty at 21 O.S.2021, § 10.

    49921 O.S.2021, § 1442. The penalty is the general felony penalty at 21 O.S.2021, § 9.

    50021 O.S.2021, § 51.1(A)(3). Where a prior conviction is an element of the offense, it cannot be used for Habitual Offender enhancement. Proof of the prior conviction as an element shall be introduced in the guilt stage of trial. Additional prior convictions for Habitual Offender enhancement shall be introduced in the second stage of trial. Chapple v. St., 1993 OK CR 38; 22 O.S. 2011, § 860.1.

    50121 O.S.2021, § 51.1(C)

    50221 O.S.2021, § 1437. The penalty is the general misdemeanor penalty at 21 O.S.2021, § 10.

    50321 O.S.2021, § 1835