(c) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is: 1. Valued at $300.00 or more but less than $5,000.00. 2. Valued at $5,000.00 or more but less than $10,000.00. 3. Valued at $10,0000.00 or more but less than $20,000.00. 4. A will, codicil, or other testamentary instrument. 5. A firearm. 6. A motor vehicle, except as provided in paragraph (a). 7. Any commercially farmed animal, including any animal of the equine, bovine, swine class or other grazing animal; a bee colony of a registered bee keeper; and aquaculture species raised at a certified aquaculture facility. If the property stolen is aquaculture species raised at a certified aquaculture facility, then a $10,000.00 fine shall be imposed. 8. Any fire extinguisher. 9. Any amount of citrus fruit consisting of 2,000 or more individual pieces of fruit. 10. Taken from a designated construction site identified by the posting of a sign as provided for in s. 810.09(2)(d). 11. Any stop sign. 12. Anhydrous ammonia. 13. Any amount of a controlled substance as defined in s. 893.02. Notwithstanding any other law, separate judgments and sentences for theft of a controlled substance under this subparagraph and for any applicable possession of controlled substance under s. 893.13 or trafficking in controlled substance under 2. 893.135 may be imposed when all such offenses involve the same amount of amounts of a controlled substance. However, if the property stolen is within a county that is subject to a state of emergency declared by he Governor under chapter 252, the property is stolen after the declaration of emergency is made, and the perpetration of the theft is facilitated by conditions arising from the emergency, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property is valued at $5,000.00 or more, but less than $10,000.00 as provided under subparagraph 2., or if the property is valued at $10,000.00 or more but less than $20,000.00 as provided under subparagraph 3. As used in this paragraph, the term "conditions arising from the emergency" means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or the response time for first responders or homeland security personnel. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this paragraph is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed. (d) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084 if the property stolen is valued at $100.00 or more, but less than $300.00, and is taken from a dwelling as defined in s. 810.011(2) or from the unenclosed curtilage of a dwelling pursuant to s. 810.09(1). (e) Except as provided in paragraph (d), if the property stolen is valued at $100.00 or more, but less than $300.00, the offender commits petit theft of the first degree, punishable as a misdemeanor of the first degree, as provided in s. 775.082 or s. 775.083.
(3)(a) Theft of any property not specified in subsection (2) is petit theft of the second degree and a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, and as provided in subsection (5), as applicable. (b) A person who commits petit theft and who previously been convicted of any theft commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (c) A person who commits petit theft and who has previously been convicted of two or more times of any theft commits a felony of the third degree, punishable as provided in s. 775.082 and s. 775.083. (d)1. Every judgment of guilty or not guilty of a pest theft shall be in writing, signed by the judge, and recorded by the clerk of the circuit court. The judge shall cause to be affixed to every such written judgment of guilty of petit theft, in open court and in the presence of such judge, the fingerprints of the the defendant against whom such judgment is rendered. Such fingerprints shall be affixed beneath the judge's signature to such judgment. Beneath such fingerprints shall be appended a certificate to the following effect: "I hereby certify that the above and foregoing fingerprints on this judgment are the fingerprints of the defendant, ________, and that they were placed thereon by said defendant in my presence, in open court, this ___ day of ________, _________ (year). Such certificate shall be signed by the judge, whose signature thereto shall be followed by the word "Judge". 2. Any such written judgment of guilty of a petit theft, or a certified copy thereof, is admissible in evidence in the courts of this state as prima facie evidence that the fingerprints appearing thereon and certified by the judge are the fingerprints of the defendant against whom such judgment of guilty of a petit theft is rendered.
(4) Failure to comply with the terms of a lease when the lease is for a term of 1 year or longer shall not constitute a violation of this section unless demand for the return of the property leased has been made in writing and the lessee has failed to return the property within 7 days of his or her receipt of the demand for return of the property. A demand mailed by certified or or registered mail, evidenced by return receipt, to the last known address of the lessee shall be deemed sufficient and equivalent to the demand having been received by the lessee, whether such demand shall be returned undelivered or not.
(5)(a) No person shall drive a motor vehicle so as to cause it to leave the premises of an establishment at which gasoline offered for retail sale was dispensed into the fuel tank of such motor vehicle unless payment of authorized charge for the gasoline dispensed has been made. (b) In addition to the penalties prescribed in paragraph (3)(a), every judgment of guilty of a petit theft for property described in this section shall provide for the suspension of the convicted person's driver's license. The court shall forward the driver's license to the Department of Highway Safety and Motor Vehicles in accordance with s. 322.25. 1. The first suspension of a driver's license under this subsection shall be for a period of up to six months. 2. The second or subsequent suspension of a driver's license under this subsection shall be for a period of 1 year.
(6) A person who individually, or in concert with one or more other persons, coordinates the activities of one or more persons in committing theft under this section where the stolen property has a value in excess of $3,000.00 commits a felony of the second degree, punishable as provided in s.775.082, s. 775.083, or s. 775.084.
- Florida Statute § 812.0145 (Theft of Persons Age 65 years of age or older; reclassification of offenses) provides as follows:
(1) A person who is convicted of theft of more than $1,000.00 from a person 65 years of age or older shall be ordered by the sentencing judge to make restitution to the victim of such offense and to perform up to 500 hours of community service work. Restitution and community service work shall be in addition to any fine or sentence which may be imposed and shall not be in lieu thereof.
(2) Whenever a person is charged with committing theft from a person 65 years of age or older, when he or she knows or has reason to believe that the victim was 65 years of age or older, the offense for which the person is charged shall be reclassified as follows: (a) If the funds, assets, or property involved in the theft from a person 65 years of age or older is valued at $50,000.00 or more, the offender commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (b) If the funds, assets, or property involved in the theft from a person 65 years of age or older is valued at $10,000.00 or more, but less than $50,000.00, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (c) If the funds, assets, or property involved in the theft from a person age 65 years of age or older is valued at $300.00 or more, but less than $10,000.00, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
- Florida Statutes § 812.0155 (Suspension of driver's license following an adjudication of guilt for theft) provides as follows:
(1) Except as provided in subsections (2) and (3), the court may order the suspension of the driver's license of each person adjudicated guilty of any misdemeanor violation of s. 812.014 or s. 812.015, regardless of the value of the property stolen. The court shall order the suspension of the driver's license of each person adjudicated guilty of any misdemeanor violation of s. 812.014 or s. 812.015 who has previously been convicted of such an offense. Upon ordering the suspension of the driver's license of the person adjudicated guilty, the court shall forward the driver's license of the person adjudicated guilty to the Department of Highway Safety and Motor Vehicles in accordance with s. 322.25. (a) The first suspension of a driver's license under this subsection shall be for a period of up to 6 months. (b) A second or subsequent suspension of a driver's license under this subsection shall be for 1 year.
(2) The court may revoke, suspend or withhold issuance of a driver's license of a person less than 18 years of age who violates s. 812.014 or s. 812.015 as an alternative to sentencing the person to: (a) Probation as defined in s. 985.03 or commitment to the Department of Juvenile Justice, if the person is adjudicated delinquent for such violation and has not previously been convicted of or adjudicated delinquent for any criminal offense, regardless of whether adjudication was withheld. (b) Probation as defined in s. 985.03, commitment to the Department of Juvenile Justice, probation as defined in Chapter 948, community control, or incarceration, if the person is not convicted as an adult of such violation and has not previously been convicted of or adjudicated delinquent for any criminal offense, regardless if whether adjudication was withheld.
(3) As used in this section, the term "department" means the Department of Highway Safety and Motor Vehicles. A court that revokes, suspends, or withholds issuance of a driver's license under subsection (2) shall: (a) If the person is eligible by reason of age for a driver's license or driving privilege, direct the Department to revoke or withhold issuance of the person's driver's license or driving privilege for not less than 6 months and not more than 1 year' (b) If the person's driver's license is under suspension or revocation for any reason, direct the department to extend the period of suspension or revocation by not less than 6 months and not more than 1 year. (c) If the person is ineligible by reason of age for a driver's license or driving privilege, direct the department ti withhold issuance of the person's driver's license or driving privilege for not less than 6 months and not more than 1 year after the date on which the person would otherwise become eligible.
(4) Subsections (2) and (3) do not preclude the court from imposing any sanction specified or not specified in subsection (2) or subsection (3).
Theft crimes may be prosecuted as misdemeanors or felonies, depending on the nature of the property taken, the value of the property taken, and/or the number of prior theft convictions the accused person has. Theft crimes may be reclassified if they occur during a state emergency or where the alleged victim is 65 years of age older. In most instances, there is much that can be done to mitigate, or eliminate, the impact of a theft charge. A St. Petersburg criminal defense attorney can help. Contact The Kilfin Law Firm, P.C. to discuss the circumstances of your case.
Applicable Jury Instructions
Florida Standard Jury Instruction 14.1 provides as follows:
- To prove the crime of theft, the state must prove the following two elements beyond a reasonable doubt:
(1) The defendant knowingly and unlawfully [obtained or used][endeavored to obtain or use] the (property alleged) of (victim).
(2) [He][She] did so with the intent to, either temporarily or permanently, a. [deprive (victim) or [his][her] right to the property or any benefit from it.] b. [appropriate the property of (victim) to [his][her] own use or to the use of any person not entitled to it.]
- Degrees. Give as applicable.
If you find the defendant guilty of theft, you must also determine if the state has proved beyond a reasonable doubt whether:
a. [the value of the property taken was $100,000.00 or more.]
b. [the value of the property taken was $20,000 or more but less than $100,000.]
c. [the value of the property taken was $10,000 or more but less than $20,000.]
d. [the value of the property taken was $5,000 or more but less than $10,000.]
e. [the value of the property taken was $300 or more but less than $5,000.]
f. [the value of the property taken was $100 or more but less than $300.]
g. [the value of the property taken was less than $100.]
h. [the property taken was a semitrailer that was deployed by a law enforcement officer.]
i. [the property taken was cargo valued at $50,000 or more that has entered the stream of commerce from the shipper's loading platform to the consignee's receiving dock.]
j. [the property taken was cargo valued at less than $50,000 that has entered the stream of commerce from the shipper's loading platform to the consignee's receiving dock.]
k. [the property taken was emergency medical equipment valued at $300 or more that was taken from a [licensed facility][an emergency medial aircraft or vehicle].]
l. [the property taken was law enforcement equipment valued at $300 or more that was taken from an authorized emergency vehicle.]
m. [the defendant, individually or in concert with one or more persons, coordinated the activities of another in committing the theft and the value of the property taken was more than $3,000.]
n. [the stolen property was [a will, a codicil, or other testamentary instrument][a firearm][a motor vehicle][a commercially farmed animal][an aquaculture species raised at a certified aquaculture facility][a fire extinguisher][2,000 or more pieces of citrus fruit][taken from a legally posted construction site][a stop sign][anhydrous ammonia.]
o. [the value of the property taken was $100 or more but less than $300 and was taken from [a dwelling][the unenclosed curtilege of a dwelling].]
- Give if applicable, but only in cases of grand theft. § 812.014(2)(a)3, Fla. Stat.
p. [in the course of committing the theft, the defendant used a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the theft and thereby damaged the real property of another.]
q. [in the course of committing the theft, the defendant caused more than $1,000 in damage to the [real][personal] property of another.]
- State of emergency. Applies only to elements b, c, d, j, k, and l above.
If you find the defendant guilty of theft, you must also determine if the state has proved beyond a reasonable doubt whether:
r. [the theft was committed within a county that was subject to a state of emergency that had been declared by the governor under Chapter 252, the "State of Emergency Management Act" and the perpetration of the theft was facilitated by conditions arising from the emergency.
- Inferences. Give if applicable. § 812.022(1), Fla. Stat.
Proof that a person presented false identification, or identification not current in respect to name, address, place of employment, or other material aspect in connection with the leasing of personal property, or failed to return leased property with 72 hours of the termination of the leasing agreement, unless satisfactorily explained, gives rise to an inference that the property was obtained or is now used with an unlawful intent to commit theft.
Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.
Proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen.
Proof of purchase or sale of stolen property by a dealer in stolen property, out of the regular course of business or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that it had been stolen.
Proof that a dealer who regularly deals in used property possesses stolen property upon which a name and phone number of a person other than the offeror of the property are conspicuously displayed gives rise to an inference that the dealer possessing the property knew or should have known that the property was stolen.
Proof that a person was in possession of a stolen motor vehicle and that the ignition mechanism of the motor vehicle had been bypassed or the steering wheel locking mechanism had been broken or bypassed, unless satisfactorily explained, gives rise to an inference that the person in possession of the stolen motor vehicle knew or should have known that the motor vehicle had been stolen.
- Definitions. Give if applicable.
- § 316.003, Fla. Stat.
"Authorized emergency vehicles" are vehicles of the fire department (fire patrol), police vehicles, and such ambulances and emergency vehicles of municipal departments, public service corporations operated by private corporations, the Department of Environmental Protection, the Department of Health, the Department of Transportation, and the Department of Corrections as are designated or authorized bu their respective department or the chief of police of an incorporated city or any sheriff of any of the various counties.
"Cargo" means partial or entire shipments, containers, or cartons pf property which are contained in or on a trailer, motor truck, aircraft, vessel, warehouse freight station, freight consolidation facility, or air navigation facility.
"Conditions arising from the emergency" means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel.
"Dwelling" means a building [or conveyance] of any kind, whether such building [or conveyance] is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the enclosed space of ground and outbuildings immediately surrounding it. For purposes of theft, a "dwelling" includes an attached porch or attached garage.
- § 812.014(2)(b)3, Fla. Stat.
"Emergency medical aircraft or vehicle" means any aircraft, ambulance, or other vehicle used as an emergency medical service vehicle that has been issued a permit in accordance with Florida law.
- § 812.014(2)(b)3, Fla. Stat.
"Emergency medical equipment" means mechanical or electronic apparatus used to provide emergency service and care or to treat medical emergencies.
"Emergency service and care" means medical screening, examination, and evaluation by a physician, or other medically appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists, and if it does, the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility.
- 812.014(2)(b)4, Fla. Stat. and § 943.10, Fla. Stat.
"Law Enforcement Equipment" means any property, device, or apparatus used by a law enforcement officer in the officer's official business. A law enforcement officer is any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full time law enforcement officers, part time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.
A "legally posted construction site" means a construction site of one acre or less in area with a sign prominently placed on the property where the construction permits are located, in letters no less than two inches in height, that reads in substantially the following manner: "This area is a designated construction site, and anyone who trespasses on this property commits a felony".
"Licensed facility" means a hospital, ambulatory, surgical center, or mobile surgical facility licensed by the Florida Agency for Health Care Administration. See Chapter 395, Fla. Stat.
"Unenclosed curtiage" means the unenclosed land or grounds, and any outbuildings, that are directly and intimately adjacent to and connected with the dwelling and necessary, convenient, and habitually used in connection with that dwelling.
"Obtains or uses" means any manner of a. Taking or exercising control over property. b. Making any unauthorized use, disposition, or transfer or property. c. Obtaining property by fraud, willful misrepresentation of a future act, or false promise. d. Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses; fraud; deception; or other conduct similar in nature. "Endeavor" means or attempt or try.
"Property" means anything of value and includes: [real property, including things growing on, affixed to, and found in land.][tangible or intangible personal property, including rights, privileges, interests, claims.][services.]
"Services" means anything of value resulting from a person's physical or mental labor or skill, or from the use, possession, or presence of property, and includes: [repairs or improvements to property.][professional services.][private, public, or government communication, transportation, power, water, or sanitation services.][lodging accommodations.][admissions to places of exhibition or entertainment.]
"Value" means the market value of the property at the time and place of the offense, or if that value cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense. If the exact value of the property cannot be ascertained, you should attempt to determine a minimum value. If you cannot determine the minimum value, you must find the value is less than $100.00.
- Theft of an Instrument. Give if applicable.
In the case of a written instrument that does not have a readily ascertainable market value, such as a check, draft, or promissory note, the value is the amount due or collectible. In the case of any other instrument that creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation, the is the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.
- Theft of a Trade Secret. Give if applicable.
The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner suffered by reason of losing an advantage over those who do not know of or use the trade secret.
- Theft Pursuant to One Scheme. Give if applicable.
Amounts of value of separate properties involved in thefts committed pursuant to one scheme or course of conduct, whether the theft are from the same person or several persons, may be added together to determine the total value of the theft.
Defenses to Your St. Petersburg, Clearwater, or Tampa Theft Charge
As set forth the applicable statute and jury instructions (see above), the state must prove, beyond a reasonable doubt, that the accused person acted knowingly. That said, theft offenses may be effectively defended on the ground that the person lacked the requisite intent to commit the crime. In a recent Tampa case, for example, my client was arrested and charged with petit theft after she passed all points of purchase in a local department store while holding a pillow and a bedspread. My client advised me that when she pulled into the parking lot, she had her cell phone with her. After selecting the merchandise from the shelf, she reached into her pocket and noticed that she did not have the phone. In her panicked state, she ran to the front of the store to see if she had dropped the phone in the front vestibule area. Although she never left the store, she was stopped by store security, was arrested, then formally charged. Upon being retained, I reviewed the discovery, and obtained a copy of the store's video surveillance tape which corroborated her assertion that she was searching for something and had no intention of leaving the store. Her father advised that he was called to the scene and found the phone under my client's front seat, as if it had been dropped. He executed a sworn affidavit reciting his observations. The state was persuaded that my client did not intend to steal the items and the charge was ultimately dropped.
Closely related to a lack of intent defense is a mistake of fact defense, which Florida recognizes under certain circumstances. A mistake of fact defense may be raised where the person intended the act, but was mistaken about a material fact (and is therefore not guilty of theft). An example may be where the person is at the airport and takes a piece of luggage from the conveyor belt under the mistaken belief that the bag belonged to him or her. Another example may be where the accused person believed he or she had permission to take the item(s), when in fact he or she did not. For example, while researching the mistake of fact defense for a recent trial I was involved in, I came across a case where the defendant, who collected aluminum cans for a living, was told by someone that he could take several bags of them from behind a local restaurant. The defendant was under the mistaken belief that the person he was speaking to was the owner of the restaurant. In fact the person was not, and had no authority to give the cans away. When the defendant returned and began loading the cans into his truck, the actual owner of the restaurant called the police. This was another situation wherein the mistake of fact defense was appropriately raised.
Whether your criminal case is pending in St. Petersburg, Clearwater, or Tampa, early intervention by an experienced criminal defense attorney can significantly enhance the likelihood for a successful outcome. Presenting mitigating evidence to the prosecutor before the charge is filed may result in the filing of a no-information. Where the purported value of the item stolen is greater than its actual value, a lesser degree of offense may be charged. The filing of a third degree felony in lieu of a second degree felony, for example, can be of tremendous benefit to an accused person, given Florida's statutory prohibitions on withholding adjudication in felony cases and the fact that diversion programs are typically not an option for second and first degree felony offenses. If adjudication of guilt is withheld, or were the person successfully completes a diversion program, he or she may be eligible to have his or her record sealed or expunged.
The ability to pay restitution may also give an accused person leverage to negotiate a more favorable resolution. Often times, victims want to be made whole and may be willing to make certain concessions where the defendant is able to do so, such as agreeing to an amendment in charge, a non-incarcerative sentence or, in some instances, the filing of no charges at all. You should also be aware that where the person is scoring mandatory prison on the sentencing guidelines, the court may depart (impose a non-state prison sanction), where the court determines that the need for payment of restitution outweighs the need for incarceration. To make that determination, there must be evidence presented that this is the victim's position on resolution and, typically, that the defendant has the ability to pay.
This is but a thumbnail sketch of the potential defenses available in a theft case. Usually, there is much that can be done to attain to attain a favorable result for an accused person. If you have been arrested or charged with a theft offense, or think you might be, an experienced St. Petersburg criminal defense attorney can help.
Resources
The following is a list of outside sources, prior blog posts and other website sections on topics related to theft offenses:
Links
- St. Petersburg Theft Crimes Defense Lawyer
Blog Posts
- Do I Need a St. Petersburg Criminal Defense Attorney?
- They Never Read Me My Rights - Can My Charge Be Dismissed?
- This Is Entrapment!! Right??
- Inchoate (Incomplete) Crimes: Attempt, Solicitation and Conspiracy
- Florida's Principal Statute: All For One and One For All
- Florida's William's Rule: What Is It and What Does It Mean For My Criminal Case?
- Pre-Trial Release In Florida: The Basics
- Speedy Trial in Florida: An Overview
- Florida Sentencing Guideline Departures: Youthful Offenders
- Florida Sentencing Guideline Departures: Unsophisticated/Isolated/Remorse
- Florida Sentencing Guideline Departures: Need for Restitution
- Florida Sentencing Guideline Departures: Legitimate, Uncoerced Plea Bargain
- Florida Sentencing Guideline Departures: Youth & Inability to Appreciate Consequences
Sections
- Affecting the Filing Decision
- Statute of Limitations as a Defense to Your St. Petersburg, Clearwater, or Tampa Area Criminal Charge
- Pre-trial Diversion
- Withholding of Adjudication
- Plea Negotiations
- Defensive Motions
- Trial
- Sentencing
- Probation Violations
- Sealing & Expunging
- Burglary
- Dealing in Stolen Property
The Bottom Line
As with all criminal charges, intervention by an experienced Tampa Bay area criminal attorney at the earliest practical point can have a positive impact on the outcome of your case. At The Kilfin Law Firm, P.C., we meticulously review all the evidence against a particular client and begin formulating an effective defense strategy immediately. Mr. Kilfin has handled countless theft cases as both a Pinellas county state prosecutor and Tampa Bay area criminal defense attorney.
If you have a pending theft charge, contact our St. Petersburg office for a free initial consultation.
Helping Good People Through Difficult Situations
