Understanding the Degrees of Burglary Charges in South Dakota: First, Second, and Third Degree Explained

Walking through an unlocked garage door in Sioux Falls, stepping into an abandoned farmhouse outside Aberdeen, or remaining inside a Rapid City retail store after closing hours can trigger felony prosecution in South Dakota-even if nothing is ever stolen and no lock is physically broken. Unlike traditional common-law rules that required a forcible breaking and entering of a house after dark, South Dakota's modern criminal code defines burglary far more broadly.

Under Chapter 22-32 of the South Dakota Codified Laws, the severity of a burglary charge depends almost entirely on two statutory factors: whether the building qualifies as an occupied structure under S.D. Codified Laws § 22-1-2(28), and whether aggravating circumstances-such as nighttime entry, possessing a weapon, or inflicting physical harm-were present at the time.

Because the difference between First-Degree, Second-Degree, and Third-Degree Burglary can mean the difference between a probationary sentence and a 25-year state penitentiary term, understanding how prosecutors classify structures and prove criminal intent is vital. Below is a comprehensive breakdown of South Dakota's burglary degrees and how a local criminal defense attorney from our directory can challenge the state's case.

The Three Degrees of Burglary Under South Dakota Law

In South Dakota, every degree of burglary requires the state to prove that a person entered or remained in a structure unlawfully with the intent to commit any crime other than only shoplifting. From there, the statutes divide the offense into three distinct felony tiers penalized under S.D. Codified Laws § 22-6-1.

First-Degree Burglary: Home Invasions and Nighttime Occupied Entries (S.D. Codified Laws § 22-32-1)

Under S.D. Codified Laws § 22-32-1, a person commits First-Degree Burglary if they enter or remain in an occupied structure with the intent to commit any crime (other than shoplifting) and any one of the following three aggravating elements occurs:

• The offender inflicts, or attempts or threatens to inflict, physical harm on another person;
• The offender is armed with a dangerous weapon; or
• The entry or remaining occurs in the nighttime (defined between sunset and sunrise).

First-Degree Burglary is a Class 2 felony punishable by up to 25 years in the South Dakota State Penitentiary and a fine of up to $50,000. Crucially, under S.D. Codified Laws § 22-1-2(28), an occupied structure includes any house, apartment, hotel room, or cabin that serves as someone's permanent or temporary habitation-even if the residents are away on vacation at the moment of the break-in. Thus, entering an empty family home at 11:00 PM with intent to steal electronics is prosecuted as First-Degree Burglary.

Second-Degree Burglary: Daytime Residential or Commercial Break-Ins (S.D. Codified Laws § 22-32-3)

Under S.D. Codified Laws § 22-32-3, Second-Degree Burglary covers entering or remaining in an occupied structure with intent to commit any crime other than shoplifting under circumstances that do not rise to First-Degree Burglary. It is a Class 3 felony carrying up to 15 years in prison and a maximum $30,000 fine.

Common examples prosecuted in the Second Judicial Circuit Court, Minnehaha County, Sioux Falls and the Seventh Judicial Circuit Court, Pennington County, Rapid City include breaking into a residence during daylight hours while the owners are at work (and the offender is unarmed), or slipping into an employee-only stockroom of an open commercial business during the day to steal cash from a safe.

Third-Degree Burglary: Commercial Buildings at Night, Detached Garages, and Farmhouses (S.D. Codified Laws § 22-32-8)

Under S.D. Codified Laws § 22-32-8, Third-Degree Burglary occurs when a person enters or remains in an unoccupied structure with the intent to commit any crime other than shoplifting. Because S.D. Codified Laws § 22-1-2(28) defines a non-residential commercial business as occupied only while a person is physically present or while it is open to the public, breaking into a closed, empty retail store, warehouse, or restaurant at night-when no employees or security guards are inside-typically falls under Third-Degree Burglary rather than First-Degree Burglary.

Third-Degree Burglary also governs unlawful entries into rural outbuildings, grain bins, detached storage sheds, and genuinely abandoned farmhouses that are no longer used as human habitations. Under S.D. Codified Laws § 22-32-8, Third-Degree Burglary is a Class 5 felony punishable by up to 5 years in prison and a $10,000 fine under S.D. Codified Laws § 22-6-1(8). Importantly, the statute explicitly excludes motor vehicles; unlawful entry into an automobile is prosecuted separately as aggravated criminal entry of a motor vehicle under S.D. Codified Laws § 22-32-19 (a Class 6 felony carrying up to 2 years in prison) if entered forcibly, or criminal entry of a motor vehicle under S.D. Codified Laws § 22-32-20 (a Class 1 misdemeanor carrying up to 1 year in jail) if non-forcible.

How Prosecutors Prove the Intent to Commit a Crime Inside

Simply trespassing inside a building without permission is not a felony burglary. If a college student wanders into the wrong apartment in Brookings or Vermillion while intoxicated to fall asleep on a couch, or if hunters step inside an abandoned barn in Brown County solely to shelter from a blizzard, the crime is misdemeanor criminal trespass under S.D. Codified Laws § 22-35-5 (a Class 1 misdemeanor carrying up to 1 year in county jail), not felony burglary.

Circumstantial Evidence of Specific Intent Under South Dakota Case Law

Because defendants rarely confess that they entered a building intending to steal, assault, or vandalize, prosecutors rely on circumstantial evidence. In State v. Blakey, 332 N.W.2d 729 (SD Supreme Court 1983) and State v. Derby, 462 N.W.2d 512 (SD Supreme Court 1990), the South Dakota Supreme Court held that a jury may infer specific intent to commit a crime inside from the surrounding facts-such as prying open a locked window at 2:00 AM, wearing masks or gloves, carrying pry bars or lockpicks (which is also a separate Class 6 felony under S.D. Codified Laws § 22-32-17), rummaging through drawers, or fleeing when an alarm sounds.

The Statutory Shoplifting Exception

South Dakota's burglary statutes explicitly exclude entering a retail store with the intent to commit only shoplifting. Prior to legislative reforms, prosecutors occasionally charged individuals who walked into an open retail store during normal business hours intending to conceal merchandise with felony burglary. Today, unless the individual enters a restricted employee-only area, remains concealed inside the store after closing, or intends to commit a different crime (such as robbery or felony vandalism), ordinary retail theft cannot be elevated to burglary.

Step-by-Step Process in South Dakota When Charged with Burglary

Whether your arrest occurred in Sioux Falls, Rapid City, Aberdeen, or Watertown, felony burglary charges proceed through the state Circuit Court following these six stages:

Step 1: Arrest, Booking, and Exercise of Fifth Amendment Rights

Because police officers immediately ask why you were inside a building in order to establish the missing element of criminal intent, politely decline to answer questions and state that you want to speak with a lawyer. Anything you say about needing money or looking for items can transform a misdemeanor trespass into a 15- or 25-year felony.

Step 2: Initial Appearance and Bail Determination

Within 48 hours of arrest, you will appear before a magistrate or circuit judge at the Second Judicial Circuit Court, Minnehaha County, Sioux Falls, the Seventh Judicial Circuit Court, Pennington County, Rapid City, or the Fifth Judicial Circuit Court, Brown County, Aberdeen. The court advises you of the charges, addresses bond conditions (such as a 24/7 sobriety bracelet or no-contact order), and accepts Form UJS-224R, South Dakota, Unified Judicial System, Application for Court-Appointed Counsel if you cannot afford private representation.

Step 3: Preliminary Hearing or Grand Jury Indictment

In South Dakota felony cases, the state must establish probable cause either through a county grand jury indictment or a live preliminary hearing (unless waived under S.D. Codified Laws § 23A-4-3 in exchange for early discovery or bond reductions).

Step 4: Discovery and Forensic Evidence Review

Your defense attorney demands all body-worn camera footage, home security videos, cell-tower location logs, and forensic latent fingerprint or DNA lab reports processed by the South Dakota Division of Criminal Investigation, Pierre.

Step 5: Pre-Trial Motions and Charge Reduction Negotiations

If the structure did not legally qualify as an occupied habitation under State v. Otto, 529 N.W.2d 193 (SD Supreme Court 1995), or if the state lacks proof of intent to commit a crime inside, your lawyer can file a motion to dismiss the higher degree or negotiate a reduction to misdemeanor criminal trespass under S.D. Codified Laws § 22-35-5.

Step 6: Jury Trial or Suspended Imposition of Sentence

If the case proceeds to trial, the state must convince all 12 jurors beyond a reasonable doubt of every element. For first-time felony offenders pleading to reduced charges (excluding certain violent offenses), your attorney may petition for a Suspended Imposition of Sentence under S.D. Codified Laws § 23A-27-13, which seals the record upon successful completion of probation.

How Much Does it Cost in South Dakota?

Defending against a felony burglary charge in South Dakota involves statutory court costs, bail expenses, and legal fees:

• Bail Bonds & Monitoring Fees: Cash or surety bail for Third-Degree Burglary typically ranges from $2,500 to $10,000 (requiring a 10% bail bondsman premium of $250 to $1,000), while First-Degree Burglary bonds frequently reach $25,000 to $100,000+. Court-ordered GPS ankle monitoring or 24/7 alcohol testing adds $2 to $12 per day.
• Court Costs & Restitution: If convicted, standard Unified Judicial System felony court costs are roughly $116.50, plus mandatory victim restitution for any damaged doors, windows, or unrecovered property, and a $25 to $100 court-appointed attorney application fee if using Form UJS-224R, South Dakota, Unified Judicial System, Application for Court-Appointed Counsel.
• Private Criminal Defense Attorney Fees: Retaining an experienced South Dakota felony defense lawyer typically costs between $4,000 and $8,500 for Third-Degree Burglary, and $8,500 to $25,000+ for First- or Second-Degree Burglary trials (at hourly rates of $250 to $450 per hour). You can compare verified South Dakota criminal defense attorneys in our directory.

How Long Does the Process Take?

Felony burglary prosecutions in South Dakota follow statutory speedy-trial and procedural timelines:

• Preliminary Hearing / Indictment (15 to 45 Days): Under South Dakota criminal procedure, a preliminary hearing must be held within 15 days if the defendant remains in custody, or within 45 days if released on bail, unless indicted earlier by a grand jury.
• Discovery & Motion Practice (2 to 5 Months): Obtaining state lab results from the South Dakota Division of Criminal Investigation, Pierre and litigating suppression motions generally takes 60 to 150 days.
• 180-Day Rule & Final Resolution (4 to 9 Months): Under South Dakota's 180-day rule, a defendant must be brought to trial within 180 days of their initial appearance, though defense continuances for investigation often extend complex felony cases to 6 to 10 months.

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