Petit Theft / Grand Theft

PETIT THEFT / GRAND THEFT / SHOPLIFTING

If you have been arrested or charged with a theft crime in central Florida, such as shoplifting, petit theft, or grand theft, call the Law Firm of John P. Guidry for a free consultation to discuss your options. As you may be aware, theft charges can arise under many different circumstances, with charges varying in severity depending upon the value of the property allegedly stolen, and the prior record of the accused.  To make matters worse, our government allows retail stores to collect civil petit theft penalties, in addition to the fines and court costs imposed in the criminal case.

One common form of theft is known as Petit Theft, where the property allegedly stolen is valued at less than $300. Typically, Petit Theft is simply a shoplifting allegation and is usually charged as a misdemeanor (can be upgraded to a Felony Theft if the accused has two prior theft crimes). Petit Theft cases are difficult to prove because the prosecutor must show that the accused “intended” to steal. Often, intent is difficult to prove because store Loss Prevention Officers (LPOs) detain shoplifting suspects before the suspect ever leaves the store. LPO's can do this because Florida law deems a “theft” completed when an item is concealed within a purse, pocket, or jacket, for example.

WRONG PLACE AT THE WRONG TIME 

What happens when your friends are shoplifting, but you're not?  It is fairly common for law enforcement to arrest both individuals that are shopping together, even though only one person stole the items.  When the police have no evidence against the person who didn't steal anything, they often resort to vague accusations of being a "lookout" for the person stealing.  Such accusations are not enough to sustain a petit theft conviction.  And, because this circumstance is so common in shoplifting charges, I'm going to quote the law: "mere knowledge that an offense is being committed, mere presence at the scene, and even a display of questionable behavior after the fact, are not, alone, sufficient to establish participation" in a crime. Theophile v. State, 78 So. 3d 574 (Fla. 4th DCA 2011).  For more details on this scenario, please check out my article entitled "Where There's Smoke, There's Fire". 

DETERMINING THE VALUE OF STOLEN GOODS IN A THEFT CASE

The value of a stolen item plays an important role in determining the level of the offense.  All stolen items which are worth less than $300 become a Petit Theft.  If the stolen items are worth more than $300, the charge is a felony Grand Theft.  There are three different grand theft levels that correspond to the amount stolen.  Values between $300 and $5,000 are a third degree felony.  Once the value gets over $5,000, the offense becomes a second degree felony Grand Theft.  Over a $100,000, and the charge becomes a first degree felony Grand Theft (and, that's a level 7 offense carrying mandatory prison time due to the points scored). 

“Value” is not as easy to prove as it may seem. Florida courts have ruled that the State cannot prove the value of the item merely by presenting testimony regarding the price of the item. For example, suppose an alleged victim testifies that $1,000 was paid for the item stolen, several months before the theft. A $1,000 value would support a felony Grand Theft conviction, but testimony as to a recent price paid does not prove value, so that grand theft charge should not stand.  Many grand theft charges have been reduced to petit theft charges based upon valuation problems, and  if you're interested, my article entitled "Grand Theft vs. Petit Theft" has a more in depth analysis of this issue.

Determining the "fair market value" of a stolen item is an important element of proof for grand theft, but it's also an important restitution issue.  Basically, if the stolen item has not been returned to the victim, a defendant must pay back the "fair market value".  But, how is this determined?  As stated above, showing the judge proof of what was paid for the item, or the price tag on the item, does not prove fair market value.  In the case of T.D.C. v. State, a juvenile was convicted of grand theft and burglary. 117 So.3d 809 (Fla. 4th DCA 2013).  At the restitution hearing, the court heard testimony that the stolen netbook computer was purchased for $265 and was in like new condition when it was stolen.  Relying upon this testimony, the judge imposed restitution of $265.  The appeals court overturned the restitution order, finding that the court never determined the "fair market value" of the computer.  In other words, just because the netbook was in "like new" condition doesn't necessarily mean that the fair market value must be the sticker price of $265.  Maybe, there are "like new" models of this netbook for $75, and that would then be the fair market value.  Without such testimony, the appeals court was forced to overturn the restitution order.  For more info on this topic, read my article "How Should a Court Determine the Value of Stolen Goods?"

By the way, sometimes a misdemeanor petit theft will be upgraded based upon the relationship of the parties.  In such cases, value is not relevant.   The prime example of this is the felony charge of theft by a hotel employee. Even a $5 bill stolen by a hotel maid is considered a felony due to the position of trust held by the employee.

POSSESSION OF RECENTLY STOLEN GOODS = THEFT?

If you are caught with recently stolen goods, don't be surprised if law enforcement assumes you're the one that actually stole the item--and thus a charge of grand theft is just around the corner.  However, a theft case can be tough to prove without a witness to the actual taking of the item.  The prosecution will rely on the timing of the theft to infer that the person who possesses the recently stolen goods must have stole them.  For example, if your bike is stolen, and five minutes later someone is seen riding it--the State can infer that the rider of the bike five minutes later is guilty of theft.  But, what if the person is caught riding the bike an hour later?  A day later?  A month later?  The issue of timing in a theft case is the subject of my article "Timing Can Be Everything In a Theft Case", check it out for more info.

Let's say you're in the unfortunate position of being in possession of recently stolen goods.  So, even if your timing is bad, there is still hope.  To understand how a theft charge may be beat even when the goods were recently stolen, the actual Florida law governing theft is a good place to start.  Florida courts have held that "proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property" was stolen.  Yudin v. State, 117 So. 3d 457 (2d DCA 2013).  Did you catch the exception to the rule?  Of course you did, it's the phrase "unless satisfactorily explained". 

If a defendant has a satisfactory explanation for possessing recently stolen goods, the case can be dismissed. But the definition of "satisfactorily explained" breaks down further into an analysis of whether or not the explanation is "reasonable".  If the explanation is "arguably reasonable", the grand theft case will not be dismissed, but if the explanation is "patently reasonable", the case will be dismissed.  To go further down this rabbit hole, check out my article "A Good Story may Get a Burglary and Theft Charge Dismissed".

CAN YOU STEAL YOUR OWN PROPERTY?

Part of the definition of a theft is the "intent to deprive an owner of property".  The problem then becomes, what if a theft accusation is merely a rightful owner attempting to retrieve her own property back?  And, are you entitled to help someone else get their stuff back?  Florida courts have held that a  "a well-founded belief in one's right to the allegedly stolen property" is a defense to the crime of grand theft, or petit theft (any theft, for that matter...).  For more details on this line of defense, see my article entitled "Someone Stole My Stuff, and I'm Gonna Steal It Back!".  The best explanation of such a defense can be found in the following jury instruction:

"Where it clearly appears that the taking of property was consistent with honest conduct, as where the taker honestly believes that he or she has a right to the property, the taker cannot be convicted of theft, even though the taker may have been mistaken".  Rodriguez v. State, 396 So.2d 798 (Fla. 3rd DCA 1981).  

ROBBERY = THEFT + USE OF FORCE

Another form of theft is known as robbery.  Simply put, a simple theft can transform into a robbery charge where there is an accusation that 'physical force' or 'threats' were used to complete a theft.  Robbery charges come in many types, all depending upon the type of force used (was a firearm used? Was a threat used?  Was the item simply snatched away?).  The more serious the type of force used, the more serious the robbery charge becomes.  We've devoted a whole page to robbery, so check it out for further information on this serious charge.

Robbery charges have theft built right into them,  and this can make for some interesting legal gymnastics for we criminal defense attorneys when the state decides to charge both petit theft and robbery on the same offense.  When this happens, a quick plea on the petit theft cases may effectively block the felony robbery charge as a violation of the Constitution's fifth amendment double jeopardy clause (basically, no person shall be subject for the same offense to be twice put in jeopardy).  Sure, I've oversimplified this scenario, so check out the case of Lafferty v. State, 114 So. 3d 1115 (Fla. 2d DCA 2013), and my article "A Quick Plea at Arraignment Saves a Felony Charge". 

And, of course, what discussion of theft would be complete without mentioning the up and coming theft crimes involving computers and corporate secrets.  Yes, this is the stuff once the exclusive domain of 007 and Mission Impossible.  But now, such crimes as "unlawfully obtaining trade secrets and confidential data" are basically theft crimes on a corporate level.  For more details on how such crimes play out, check out my article "Unlawful Access to a Computer".

FRAUD, EMBEZZLEMENT = THEFT? OR, JUST A BAD BUSINESS DEAL?

Many theft cases have fraud or embezzlement overtones.  In fact, if a citizen is arrested for fraud or embezzlement, it is very likely that grand theft charges will be filed as well.  There are numerous defenses to grand theft charges that involve business transactions, as these matters can merely be a civil suit dressed up in criminal clothing.  One such defense is known as the "Good Faith" defense.  The details of a good faith defense to theft can be found in my article "Good Faith Can Defeat a Grand Theft Charge".  I'll give you the basics here by way of example. A recent case involved several investors who gave business start up capital to a defendant.  The defendant then simply spent the money for his own personal gain.  Sounds like an episode of American Greed, right?  Anyway, as you might expect, a criminal grand theft case soon followed, yet the appeals court overturned the conviction based upon the fact that the defendant was never really told how he should spend the money.   

Believe it or not, all accusations of theft do not belong in a criminal court.  Florida law has provisions for "civil theft".  Even though aggressive prosecutors will always charge a civil theft as "criminal"--its not.  For example, a recent case involved the start up of a new Irish pub called Finnegan's (common name, I know).  The pub had a third party payroll service which would pay all salaries.  After the payroll company dished out $67,000 in salaries, their agreement with Finnegan's required the pub to immediately reimburse them for their $67,000 payout.  They do this every couple of weeks (on payday, of course) without any hassle--but in this particular instance--Finnegan's did not reimburse them.  Criminal grand theft charges were brought against the owner for failing to pay this amount as per their agreement.  The owner was convicted, but the appeals court overturned the second degree grand theft conviction because "theft" crimes which arise out of business agreements are not considered criminal unless the State can prove fraud.  For details on this case, check out my article "Is Stealing Always a Crime?".

It seems that many Grand Theft charges are just business deals gone bad, as mentioned above.  This is especially common when it comes to general contractors in the State of Florida.  Many citizens are out there paying contractors to have their roofs redone, bathroom remodeled, a pool put in the back yard, you name it they'll build it.  Unfortunately, these deals go belly up with no criminal intent involved.  Let's face it, businesses go bankrupt every day and you can't always get your money back out.  But, that's where the police may get involved.

In the case of Frazier v. State, Frazier took an $8,000 down payment to do some remodeling.  114 So. 3d 461 (Fla. 2d DCA 2013).  He submitted an application for a building permit, and worked for several days straight.  More architectural plans were needed, so Frazier was given another $2,000 to obtain the drawings.  As you may have figured out by now, no more work was done, and the victim was out $10,000.  Frazier was convicted of grand theft, but the appeals court overturned the conviction, following the general principle in grand theft cases that "broken promises of performance do not establish the requisite criminal intent to prove grand theft where the breach of performance occurs subsequent to the claimed taking."  Id.  For further details on these types of cases, click on my article "Grand Theft by a Contractor, Tough to Prove".  [Frazier wouldn't have had his case thrown out if the victim simply followed the civil contractor nonperformance instructions found in Florida Statute section 489.126(3)(b)(3).]

CAN PRIOR BUSINESS CLIENTS BE USED TO REBUT STATE'S EVIDENCE?

Can a Defendant bring in old business clients to prove that, in fact, his business dealings were legitimate--even though this one particular customer's deal didn't work out?  When defending "Business Deal Gone Bad" thefts (and schemes to defraud), we defense attorneys like to present evidence of prior business deals that did not go wrong.   And yes, this can be done.  Details on this sort of evidence can be found in the case of Borgren v. State, 611 So.2d 547 (Fla. 5th DCA 1992).

WHAT SORT OF "PROPERTY" IS SUBJECT TO THE THEFT STATUTE?

In some cases, grand theft is charged not because some "thing" was stolen, but rather, the theft charge arises out of a fraudulent scheme of sorts.  In such cases, its important to analyze whether or not the "thing" is really "property" that can be "stolen".  I know this sounds like an odd idea, but the issue comes up so much these days, that I'm going to give you a recent example of the concept.  In Dent v. State (2013 WL 440117), Dent worked for a sheriff's office.  The sheriff's office human resources department had a computer system which fairly distributed overtime hours to those deputies that requested such.  Through some computer manipulations, Dent was able to assign herself a far greater amount of overtime than the other officers, thereby cheating the other officers out of the opportunity to do overtime hours--as Dent was hogging up all the overtime!  Dent's fellow officers eventually realized the disparity here, and criminal charges were brought against her.  She was convicted of theft, but the appeals court overturned the theft charge, noting that she never stole "property" within the meaning of the theft statute. Basically, what she did was not a crime at all, it just got her fired (of course).  For more information on this interesting case, check out my article "Defense Attorney Gets a Deputy's Felony Conviction Thrown Out".

If you are arrested and charged with any form of theft, ranging from Petit Theft, Burglary, Shoplifting, or Grand Theft, give experienced theft attorney John Guidry a call. Of course, it costs you nothing to speak with Mr. Guidry about your case, so why not give him a call?

E-mail: jguidrylaw@msn.com

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