Dealing in Stolen Property Helping Good People Through Difficult Situations

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Dealing in stolen property, referred to in some jurisdictions as "fencing", involves the selling, re-selling, pawning, bartering, or otherwise transferring possession of stolen goods. These types of offenses are common throughout St. Petersburg, Clearwater, and Tampa and are, in many instances, charged in conjunction with a burglary offense. The typical DSP investigation is initiated when the alleged victim contacts law enforcement to report that certain property has been taken from his or her home, garage, shed, or vehicle.

The sale or transfer of stolen goods from one individual to another can be difficult to investigate and prove. Many dealing in stolen property prosecutions, therefore, result from the accused person having pawned the stolen item or items. Certain types of property have a tendency to turn in up in local pawnshops, including jewelry items, firearms, and lawn equipment. This is one of the first places law enforcement will look in attempting to locate stolen property. When it appears the items have been located, the alleged victim will usually identify the items at the shop or by viewing a photograph of them. The items may also be identified through unique designs or markings (in the case of jewelry), or serial numbers.

At the time of the transaction, the pawnbroker will require the person pawning the item to place his or her thumb print on the face of the pawn slip, which is how the accused person is typically identified. In some instances, the transaction is also recorded on video. It is rare that a pawnbroker will have an independent recollection of a particular transaction for purposes of identification.

To prosecute these cases successfully, the state will need to have evidence that the accused person knew or should have known that the items were stolen - mere identification is not enough. Under Florida law, the jury may infer knowledge based on the existence of certain facts, including possession of recently stolen property without a satisfactory explanation, or the purchase or sale of the stolen item as a price substantially lower than its fair market value. Of course the most effective way to establish this element is through an admission by the accused person that he or she knew the item in question was stolen. You may be thinking "why would anyone admit to that?" (whether they or guilty or not), but it happens more often than you may think. As a Pinellas county state prosecutor, I handled countless theft and/or dealing in stolen property cases that were made through an admission by the accused. On the flip side, as a St. Petersburg criminal defense attorney, I have been faced with having to defend these types of cases, where my client purportedly admitted knowledge.

Dealing in stolen property can be charged as either a second or first degree felony. The second degree felony, which has a statutory maximum of fifteen years, is is the more common offense charged and is a level 5 on Florida's sentencing guidelines. A level 5 offense, in and of itself, will not score mandatory prison. If, however, there are other felony offenses before the court for sentencing, or if the person has an extensive prior criminal history, he or she may end up scoring in the mandatory prison range. The first degree felony is charged where there is evidence that the accused person, in committing the crime, played a supervisory role or otherwise acted in a position of authority. The first degree felony has a statutory maximum of thirty years and is a level 7 on the guidelines. A level 7 offense will score mandatory prison without regard to additional offenses or prior record. In any event, many of Florida's draconian recidivist sentencing statutes, such as the prison releasee re-offender statute, or the habitual violent felony offender statute, are not triggered by a DSP conviction.

You should also be aware that although a person can be charged with both dealing in stolen property and theft, based on the same criminal episode, the accused person cannot be convicted of both. It is rare, however, that the state will charge both - it is usually the DSP charge that is filed (if it can be proven). Under the right circumstances, however, the lesser charge of grand theft (or petit theft) may be filed pursuant to pre-charge negotiations, or may be amended thereafter as part of a negotiated plea.

Applicable Florida Statutes

The following is a list of Florida statutes that pertain to dealing in stolen property charges, as set forth in Chapter 812.

Florida Statute § 812.019 (Dealing in stolen property) provides as follows:

(1) Any person who traffics in, or endeavors to traffic in, property that he or she knows or should know was stolen shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, and s. 775.084.

(2) Any person who initiates, organizes, plans, finances, directs, manages, or supervises the theft of property and traffics in such stolen property shall be guilty of a felony of the first degree.

Florida statutes § 812.025 (Charging theft and dealing in stolen property) provides as follows:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

Florida statutes § 812.028 (Defenses precluded) provides as follows:

It shall not constitute a defense to a prosecution for any violation of the provisions of ss. 812.012-812-037 that:

(1) Any stratagem or deception, including the use of an undercover operative, or law enforcement officer, was employed.

(2) A facility or an opportunity to engage in conduct in violation of any provision of this act was provided.

(3) Property that was not stolen was offered for sale as stolen property.

(4) A law enforcement officer solicited a person predisposed to engage in conduct in violation of any provision of ss. 812.12-812.037 in order to gain evidence against that person, provided such solicitation would not induce an ordinary law abiding person to violate any provision of ss. 812.012-812.037.

Applicable Jury Instructions

The following is a list of each element of the dealing in stolen property offenses (fencing and organizing), which the state must prove as a condition precedent to a finding of guilt:

Florida Standard Jury Instruction 14.2 provides as follows:

To prove the crime of dealing in stolen property (Fencing), the state must prove the following two elements beyond a reasonable doubt:

1. The defendant [trafficked in][endeavored to traffic in](property alleged}.

2. The defendant knew or should have known that (property alleged) was stolen.

Inferences. Give if applicable. § 812.022(2), Fla. Stat.

Proof of the possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew of should have known that the property had been stolen.

Inferences. Give if applicable. § 812.022(3), Fla. Stat.

Proof of th 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.

Inferences. Give if applicable. § 812.022(4), Fla. Stat.

Proof of purchase or sale of stolen property by a dealer in 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.

Inferences. Give if applicable. § 812.022(5), Fla. Stat.

Proof that a dealer who regularly deals in uses 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.

Inferences. Give if applicable. § 812.022(6), Fla. Stat.

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

§ 812.012(3), Fla. Stat.

"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, and claims and services.

§§ 812.012(6); 812.028(3), Fla. Stat.

"Stolen property" means property that has been the subject of any criminally wrongful taking or if the property has not been stolen, that it was offered for sale to the defendant as stolen property.

§ 812.012(7), Fla. Stat.

"Traffic" means: to sell, transfer, distribute, dispense or otherwise dispose of property; and to buy, receive, possess, obtain control of or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of that property.

Give if both theft and dealing in stolen property are submitted to the jury

You will receive separate verdict forms for theft and dealing in stolen property as the defendant was charged with both crimes.

If you find that the state has not proven theft and dealing in stolen property, then you are to find the defendant not guilty of both offenses.

If you find that the state has proven theft, but not dealing in stolen property, then you are to find the defendant guilty of theft and not guilty of dealing in stolen property.

If you find that the state has proven dealing in stolen property, but not theft, then you are to find the defendant guilty of dealing in stolen property, and not guilty of theft.

If you find that the state has proven both theft and dealing in stolen property, then you must decide whether both offenses were in connection with one scheme or course of conduct. "One scheme or course of conduct" means that there was no clearly disjunctive interval of time or set of circumstances which meaningfully disrupted the flow of the defendant's conduct.

If you find that both theft and dealing in stolen property were proven by the state, and offenses were not in connection with one scheme of course of conduct, then you are to find the defendant guilty of both theft and dealing in stolen property.

If you find that both theft and dealing in stolen property were proven by the state, and the offenses were in connection with one scheme or course of conduct, then the defendant must be convicted of either theft or dealing in stolen property. In making your decision, you must determine whether the defendant is more of a common thief or more of a trafficker. This determination rests on the defendant's intended use of the stolen property. The defendant is a "common thief" if [he][she] had the intent to appropriate property to his or her own use or to the use of any person not entitled to the use of the property. The defendant is a "trafficker" if [he][she] has the intent to traffic in the stolen property. If you find the defendant more of a 'common thief' then you are to find the defendant guilty of theft only. If you find the defendant more of a 'trafficker' then you are to find the defendant guilty of dealing in stolen property only.

Florida Standard Jury Instruction 14.3 provides as follows:

To prove the crime of dealing in stolen property (Organizing), the state must prove the following two elements beyond a reasonable doubt:

1. The defendant [initiated][organized][planned][financed][directed][managed][supervised] the theft of (property alleged).

2. The defendant trafficked in (property alleged).

Inferences. Give if applicable. § 812.022(2), Fla. Stat.

Inferences. Give if applicable. § 812.022(3), Fla. Stat.

Inferences. Give if applicable. § 812.022(4), Fla. Stat.

Inferences. Give if applicable. § 812.022(5), Fla. Stat.

Inferences. Give if applicable. § 812.022(6), Fla. Stat.

Definitions

§ 812.012(3), Fla. Stat.

§§ 812.012(6); 812.028(3), Fla. Stat.

"Stolen property" means property that has been the subject of any criminally wrongful taking or if the property has not been stolen, that it was offered for sale to the defendant as stolen property.

§ 812.012(7), Fla. Stat.

Dealing in Stolen Property is a theft related offense that is always a felony in Florida. Depending on the circumstances, it may be prosecuted as either a second or first degree felony. As charged, a diversion program is not an option and Florida's statutory prohibition on withholding adjudication for certain offenses can create additional challenges in avoiding a conviction. If you have been charged with DSP, St. Petersburg criminal defense attorney Donald J. Kilfin can help. Contact The Kilfin Law Firm, P.C. to discuss your case.

Defenses to Your St. Petersburg, Clearwater, or Tampa Dealing in Stolen Property Charge

The most effective defense strategies in a criminal case are often dictated by the underlying factual circumstances, the stage of the proceeding, and the the client's expectations. Dealing in stolen property can be charged in situations involving sophisticated theft ring operations or a relatively simple scenario involving the pawning of (for example) a ring. In the former scenario, identifying a person may be problematic. In such situations, the state may need to rely on co-defendant testimony to prove the case. Where co-defendants are willing to testify, the state will often engage in plea deals in exchange for such testimony (which, obviously, may be used to attack the reliability of the co-defendant's statements). In a simple pawn transaction situation, however, ID is usually not an issue because (as indicated above), the accused will be required to place a thumb print on the face of pawn slip and produce some form of identification. These transactions are also usually video recorded. Most DSP charges in the St. Petersburg, Clearwater and Tampa areas arise from pawn transactions involving stolen property. Where ID is not an issue, your criminal defense attorney will usually look to the element of knowledge for any potential weaknesses in the state's case (can it be established that the accused person knew that the items involved were stolen?). As indicated in the jury instructions above, inferences of knowledge may be drawn where the person is found to be in possession of recently stolen property without a satisfactory explanation, or where there is evidence that the accused person purchased the property for an amount that is substantially less than its fair market value. While the accused does not have to prove or disprove anything (the burden of proof in any criminal case is on the state exclusively), your criminal defense attorney will look to provide some plausible explanations for such scenarios regardless.

Where sufficient reasonable doubt can be established at the pre-filing stage, the state my decline to prosecute. This is done by filing what is called a "no-information" or "letter of release" with the clerk of court. If it appears there is sufficient evidence to provide the elements of the crime (ID and knowledge), the state may, under certain circumstances, be willing to file a lesser charge, such as grand theft or false verification of ownership. Given Florida's prohibition on withholding adjudication in certain felony cases, and the unavailability of a diversion program for second and first degree felonies, the filing of a lesser charge can be of tremendous benefit to an accused person, and particularly a first offender. Where a DSP is filed, the state may agree to amend the charge at some point thereafter to allow for a more favorable disposition. This is where the criminal defense attorney really has his or her work cut out: the prosecutor must be persuaded that an amendment in charge is warranted.

Where the person is scoring mandatory prison, and an amendment in charge is not an option, a departure hearing may present a viable option for a non-state prison sentence. The court will usually require the accused person to enter a plea of guilty or no contest prior to the sentencing hearing; most judges will not conduct a pre-plea departure hearing. These are some obvious risks associated with this: once the plea is entered, it is unlikely that the person will be permitted to withdraw the plea where the judge declines to depart. Where the departure is based on the accused person's status as a youthful offender, the court may (in addition to imposing a non-incarcerative sentence), withhold adjudication of guilt where it would otherwise be precluded from doing so. For information on this, see the "Resources" section below.

Another option may be a jury trial. Given a person's exposure in second and first degree felony charges, this is a decision that must be carefully considered. As always, more than one defense strategy can (and often should) be employed in defending a criminal case. If you have been charged with DSP in the Tampa Bay area, or think you might be, an experienced St. Petersburg criminal defense attorney can help.

Resources

The following is a list of prior blog posts and other website sections on topics related to theft offenses:

Blog Posts

Sections

The Bottom Line

Dealing in stolen property is always a felony offense in Florida regardless of the value of the items involved. It may be prosecuted as either a second degree felony (punishable by up to fifteen years) or a first degree felony (up to thirty years). The second degree felony will not, in and of itself, score mandatory prison on Florida's sentencing guidelines whereas the first degree felony will. A first degree felony is charged where it can be proven that the person played a supervisory role in the crime. The second degree felony is the more common charge filed. A person cannot be convicted of both DSP and grand theft. As with any criminal offense, early intervention by an experienced criminal defense attorney can have a significant impact on the outcome of the case. In these types of cases, there is usually much that can be done to mitigate the impact of the charge.

If you have been arrested or charged with dealing in stolen property in the Tampa Bay area, contact The Kilfin Law Firm, P.C. to discuss your case.

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