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Burglary vs. robbery: What’s the difference?

Burglary vs. robbery explained.

This is a question frequently asked of our criminal defense attorneys in Milwaukee, WI.  What’s the difference between burglary and robbery?  Frequently people use the terms interchangeably.  Unfortunately, they’re not the same.

Criminal defense lawyer Matthew Meyer explains burglary vs. robbery in this blog post.  If you are charged with either offense, certainly call one of our criminal defense attorneys today.  You can reach our office 24/7 at (414) 270-0202.


Burglary vs. Robbery. A man commits robbery with threat of force.
Burglary vs. robbery can be confusing. In this caption, a man commits robbery with threat of force.

Robbery

Section 943.32 of the Wisconsin Statutes prohibits robbery.  There’s three different versions of robbery, but they’re all premised on the same principle: whoever, with intent to steal, takes property from the person or presence of the owner.  The circumstances determine the felony level of the offense:

Robbery with use of force

Section 943.32(1)(a) of the Wisconsin Statutes prohibits robbery with use of force.  The law provides:

By using force against the person of the owner with intent thereby to overcome his or her physical resistance or physical power of resistance to the taking or carrying away of the property.

Robbery with use of force relies on four elements.  Unless the government satisfies those elements, you cannot be convicted of the crime.  There are four.  They’re provided in Wisconsin Jury Instruction Criminal 1479:

  • Firstly, the victim was the owner of property; and
  • Secondly, the defendant took and carried away property from the person or from the presence of the person; and
  • Thirdly, the defendant took the property with the intent to steal; and
  • Finally, the defendant acted forcibly.  Forcibly, in this context, means the defendant actually used force against the victim, with intent to overcome or prevent his physical resistance or power of the victim.

This is the kind of robbery we typically imagine.  The defendant walks up to the victim and takes something from him.  The victim owns the property.  The defendant left with the property.  The defendant intended to steal the property.  And there was some physical interaction requiring force.

This crime is a Class E felony.  A conviction carries the potential of 15 years in prison, a fine of $50,000.00, or both.

Robbery with threat of force

Section 943.32(1)(b) of the Wisconsin Statutes prohibits robbery with threat of force.  That statute tells us:

By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.

So whereas the previous version of robbery focused on the actual use of force, this one is different.  The use of force certainly isn’t required.  Instead, the threat of force is.  Robbery with threat of force has four elements.  Prosecutors must prove those elements beyond a reasonable doubt before you’re convicted.  The same jury instruction, Wisconsin Jury Instruction Criminal 1479 provides those elements:

  • Firstly, the victim was the owner of the property; and
  • Secondly, the defendant took and carried away property from the person, or from the presence of the person; and
  • Thirdly, the defendant took the property with the intent to steal; and
  • Finallythe defendant acted forcibly.  Forcibly means the defendant threatened the imminent use of force against victim, with intent to compel victim to submit to the taking and carrying away of the property.    Imminent means “near at hand,” or “on the point of happening.”

What is robbery with threat of force?

This version of robbery could be a stick-up type situation.  The defendant may simply say “give me all your things or I’m going to hit you.”  The addition of an actual weapon, or threat of an actual weapon, changes this charge to armed robbery.  The victim must own the property.  The defendant must take and carry away the property.  The defendant must take with intent to steal.  And finally, there must be the threat of force.

Like robbery with use of force, this is a Class E felony.  The penalty is 15 years prison, $50,000.00 in fines, or both.  When facing a serious felony, we suggest hiring one of the best criminal defense lawyers in Milwaukee.

Armed Robbery

Section 943.32(2) of the Wisconsin Statutes prohibits armed robbery.  The law says:

Whoever violates sub. (1) by use or threat of use of a dangerous weapon, [a pepper spray device, or anything the victim reasonably believes is a dangerous weapon] is guilty of a Class C felony.

Certainly armed robbery is a lot more serious than the previous two versions.  But the focus is certainly the same.  The defendant takes property from the person or presence of the owner under forceful, or armed (or the threat of either) circumstances.  Armed robbery also has certain elements the government must prove beyond a reasonable doubt.  They’re provided in Wisconsin Jury Instruction Criminal 1480:

  • Firstly, the victim was the owner of property; and
  • Secondly, the defendant took and carried away property from the victim or from the presence of the victim; and
  • Thirdly, the defendant took the property with the intent to steal;
  • Fourthly, the defendant acted forcibly; and
  • Finally, at the time of the taking or carrying away, the defendant used or threatened to use a dangerous weapon.

What is armed robbery?

This is certainly just as it sounds.  The defendant takes property from the victim.  The taking is from his person or in his presence.  The defendant took the property intending to steal it.

Armed robbery is a Class C felony.  Perhaps surprisingly, that’s the third-most serious criminal classification.  A Class C felony is punishable by 40 years in prison, a $100,000.00 fine, or both.  Hiring a top criminal defense attorney is a great way to work towards avoiding the maximum penalty.


Burglary

Burglary charges do not involve the taking from an actual person.  But burglary focuses on taking from a place.  And that’s burglary vs. robbery.  That’s precisely the difference.

But what is burglary?

Section 943.10(1m) of the Wisconsin Statutes prohibits burglary.  The law states:

Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony in such place is guilty of a Class F felony:

(a) Any building or dwelling; or
(b) An enclosed railroad card; or
(c) An enclosed portion of any ship or vessel; or
(d) A locked enclosed cargo portion of a truck or trailer; or
(e) A motor home or other motorized type of home or a trailer home, whether or not any person is living in any such home; or
(f) A room within any of the above.

You’ll notice that none of these violations require taking from a person.  While the crime is certainly one involving the theft of property, none of these involve taking from a person.  Burglary is a Class F felony, punishable by up to $25,000.00 in fines and 12.5 years in prison.

What are the elements of burglary?

All crimes have certain elements that must be proven beyond a reasonable doubt by the government.  Burglary has 4 elements, provided in Wisconsin Jury Instruction Criminal 1421:

  • Firstly, the defendant intentionally entered a building; and
  • Secondly, the defendant entered the building without he consent of the person in lawful possession; and
  • Thirdly, the defendant knew the entry was without consent; and finally
  • The defendant entered the building with intent to steal.

For example, if Peter enters my office with the intent to steal my computer, he’s committing burglary.  He intentionally entered my building.  Next, he entered my building without my consent.  He certainly knew I didn’t consent to him entering my building.  And finally, he entered to steal my computer.  Obviously his intent was to steal.

What about armed burglary?  How does that factor into burglary vs. robbery?

It’s actually called burglary while armed, inconsistent with the robbery naming titles.  But in the burglary vs. robbery context, this is certainly a burglary charge that comes close to robbery.  After all, why would you arm yourself unless planning on resistance?

Burglary while armed is prohibited in section 943.10(2) of the Wisconsin Statutes.  It makes clear that when the original burglary statute is violated under certain circumstances, it’s a whole lot more serious.  Those circumstances include:

  • Firstly, the defendant is armed with a dangerous weapon or pepper spray; or
  • Secondly, the defendant is unarmed, but arms himself with a dangerous weapon or pepper spray while still in the burglarized enclosure; or
  • Thirdly, the defendant opens or attempts to open any depository by use of an explosive (while in the burglarized enclosure); or
  • Fourthly, the defendant commits a battery upon a person lawfully therein; or finally
  • The burglarized enclosure is a dwelling, boat, or motor home.  Another person is lawfully present in the dwelling, boat, or motor home when the burglary occurs.

Importantly, look at the fourth and fifth modifiers above.  Although a person is present during the burglary, the property isn’t taken from the person.  It’s certainly conceivable that a robbery occur while the defendant burglarizes property.  These are two separate crimes focusing on different action.

That’s burglary vs. robbery, but is that all?

Of course not.  There’s something called criminal trespass to dwellings in Wisconsin.  Criminal trespass to dwellings is a misdemeanor offense that almost feels like an incomplete burglary.

Section 943.14 of the Wisconsin Statutes prohibits criminal trespass to dwellings.  The law says:

Whoever intentionally enters or remains in the dwelling of another without the consent of some person lawfully upon the premises or, if no person is lawfully upon the premises, without the consent of the owner of the property that includes that dwelling, under circumstances tending to create or provoke a breach of the peace, is guilty of a Class A misdemeanor.

Elements of criminal trespass to dwellings:

Wisconsin Jury Instruction Criminal 1437 provides the jury instructions for this offense:

  1. The defendant intentionally entered the dwelling of another; and
  2. The defendant entered without the consent of someone lawfully upon the premises; and
  3. The defendant entered under circumstances tending to create or provoke a breach of the peace.

Someone enters the dwelling of another. He’s not allowed to be there.  And his presence, or how he entered, tends to cause or provoke a breach of the peace.  Obviously this charge is not a burglary – as nothing was taken from the dwelling.  And it is not a robbery – nothing was taken from a person.

Contact a top Milwaukee criminal defense attorney regarding your burglary, robbery, or criminal trespass to dwellings case

The law changes quickly.  As of the writing of this article (November 26, 2019 by criminal defense attorney Matthew R. Meyer) we can clearly sort out burglary vs. robbery.  Robbery focuses on taking from a person.  Burglary focuses on taking from a place.  Criminal trespass to dwellings focuses on entering a place illegally.

If you are charged with any crime in Wisconsin, certainly you need a top criminal defense attorney fighting alongside you.  At Meyer Van Severen, we regularly defend all criminal charges throughout Wisconsin.  Our criminal defense attorneys are consistently recognized amongst the best in the state.

To get started on your criminal case, contact Meyer Van Severen, S.C. at (414) 270-0202.  We answer phones 24/7.