Albuquerque, NM asked in Criminal Law for New Mexico

Q: If someone is charged with burglary attempt and breaking and entering attempt whats the sentence carry

If the victim signs an afidavit of non prosecution does the person get released??

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1 Lawyer Answer
Stephen Aarons
Stephen Aarons
  • Criminal Law Lawyer
  • Santa Fe, NM
  • Licensed in New Mexico

A: It depends on whether the attempt was residential or commercial burglary. Attempts lower the crime one degree so third degree residential burglary is of course a third degree felony carrying 0-36 months (3 years) in prison while attempted residential burglary is a fourth degree felony carrying 0-18 months in prison and up to a $5,000 fine. Habitual offender time must be added if the defendant has prior felony convictions. The vast majority of res burg defendants get released unless they are a danger to the community or a flight risk based on failures to appear at court hearings in previous cases. The affidavit will help get the person released from pretrial detention and will also give his lawyer some leverage (along with the fact that only attempts are being charged) to persuade the assistant district attorney to drop the case eventually in exchange for counseling (drug treatment likely) and community service or at least to agree upon no jail and probation for 3-5 years.

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