Multiple Convictions

Multiple Convictions

The grading routes settle how serious a burglary is, but § 221.1(3) asks a separate question: whether a conviction for burglary may stand alongside a conviction for the crime the burglar went in to commit. The answer is generally no. A person may not be convicted of both burglary and the offense it was his purpose to commit after the burglarious entry, and the bar reaches an attempt to commit that offense as well.¹ The bar has one exception, which lifts it when the additional offense is a felony of the first or second degree.² The order matters, because the bar is the default and the exception is the part that students tend to apply to the wrong offense, as the discussion of the trap below shows.

The reason for the bar comes from what burglary punishes. Section 221.1 defines the offense by an entry made with the purpose of committing a crime inside, so the wrong is the intrusion undertaken for a criminal end.³ When the burglar then carries out that end, the later offense is the same criminal objective reaching completion, and the purpose that supplied the burglary's mental state is the purpose the later offense fulfills. Convicting of both would therefore pile two punishments on what is essentially one wrong. The exception rests on the opposite situation. When the purpose offense is itself a first- or second-degree felony, it inflicts a separate and serious harm that the burglary conviction does not capture, and a separate conviction is the way the law records that harm. Tying the exception to the grade of the other offense also lets the subsection borrow the scale of degrees the rest of the Code already uses, instead of inventing a new measure of seriousness.

The two scenes differ in one respect, which is the seriousness of the offense D entered to commit. The burglary is the same intrusion with the same criminal purpose in both, and only the grade of the purpose offense decides whether a second conviction is allowed. The subsection also does not depend on the burglar's success. An intruder who enters a shop to steal and is caught before taking anything faces the same test, because the bar covers an attempt to commit the purpose offense, and the bar applies unless the additional offense, whether completed or attempted, is a felony of the first or second degree.⁴

The measure that opens the door is the grade of the additional offense, and students lose this issue when they look at the grade of the burglary instead. Burglary under the Code is a felony of the second degree when a grading route is present and otherwise falls to the third degree, so it is tempting to reason that a second-degree burglary is serious enough to support a second conviction.⁵ The text does not say that. It asks only about the offense the burglar meant to commit and says nothing about how the burglary was graded under the routes taught earlier in this chapter.

This pair isolates the variable from the other direction. In the first scene the burglary carries the higher grade and the bar holds, and in the second the burglary carries the lower grade and the exception applies. A reader who checks the wrong offense gets both answers wrong. The method on a fact pattern is therefore to identify the offense the actor meant to commit, ask whether it was completed or only attempted, and look at that offense's grade. The two-grade scale from the grading routes tells you how to classify the burglary, while § 221.1(3) uses the degrees of the other offense.