Florida Petit Theft Defense Lawyer in Florida
Florida Petit Theft Laws and Penalties
Theft in Florida is punishable as either a misdemeanor or a felony. The distinction lies in the value of the stolen property. A person who steals property valued at less than $750.00 commits petit theft. Petit (taken from the word for “small” in French) theft in Florida is a misdemeanor in either the first-degree or second-degree. Shoplifting is called “retail theft” in Florida.
The crime of theft may be found in Florida Statutes section 812.014. Section 812.014 defines theft as knowingly obtaining, using, endeavoring to obtain or use, on a temporary or permanent basis, property and in doing so deprives a person of the right to use the property or to derive a benefit from using the property taken. Alternatively, theft occurs when a person used property to the detriment of its owner when the person had no authority to use the stolen property.
Theft is a specific intent crime, meaning that the government must prove that the accused had the in his or her mind the resolve to deprive the property owner of the right to enjoy the property. Additionally, the government must prove that the person accused of theft must have formed the requisite intent to steal.
A hypothetical factual scenario illustrates the finer point of intent to deprive and intent to steal. The hypothetical involves a man leaving a restaurant and taking a coat off the rack and walking out. However, there were two identical coats on the rack, and the man took the wrong one accidentally. In that scenario, the man who took the wrong coat is not criminally responsible for taking the wrong coat because he did not have the intent to deprive the owner of the coat permanently. However, the analysis could change if the mistaken coat contained a wallet with identification of the true owner and the person who claims to accidentally took the coat fails to return the items to their rightful owner.
Degrees of Petit Theft
When a person steals property or goods valued at more than $100.00 but less than $750.00, then the person has committed petit theft in the first degree. Petit theft in the first degree may be punished by incarceration in the county jail for up to one year. The court must impose a definite sentence if the person must be sent to jail. Additionally, the court could impose a fine not to exceed $1,000.00. Petit theft in the first degree is a first-degree misdemeanor under Florida law.
Stolen property valued at less than $100.00 is petit theft in the second degree. Second-degree theft is a second-degree misdemeanor. A second-degree misdemeanor committed in Florida may be punished by incarceration in the county jail for a definite term not exceeding 60 days. Furthermore, the judge could penalize the defendant by assessing a fine of not more than $500.00.
Prosecutors are taught to seek the most severe charge against the accused for which probable cause exists. Therefore, prior convictions of theft could allow prosecutors to file charges for theft as subsequent offenses. Charging theft as a subsequent offense allows the state’s attorney to prosecute the case as a first-degree misdemeanor. Furthermore, two prior theft convictions would allow the prosecutor to seek felony charges in the third degree.
Collateral Consequences of a Conviction for Petit Theft
Convictions for theft under Florida law could impose additional penalties upon a person beyond those contained in the criminal theft statute. The penalties are civil by nature and not criminal. One collateral consequence of a theft conviction in Florida relates to one’s driver’s license. Any person convicted of theft in Florida could have his or her license suspended for a first offense. License suspension is mandatory for subsequent offenses of theft.
The suspension is capped at six months for the first time the Florida Department of Highway Safety suspends the convicted offender’s driver’s license. A person convicted of any crime alleging theft for a second time faces a period of license suspension not to exceed more than one year. A person under 18-years-of-age who is alleged to commit theft could face a license suspension instead of a commitment to the Department of Juvenile Justice, or other sanction if the person has never been convicted of theft previously.
Florida law imposes civil liability on the person convicted of theft. Under Florida law, the person convicted of theft (or a parent or guardian of a person under 18-years-of-age) could be found liable for the loss to the victim. The victim could claim money damages for three-times the value of the stolen property or $200.00. Moreover, the victim of theft could seek an award for attorney’s fees and costs of litigation.
The victim must follow a specific procedure to win civil damages for theft. The victim of the theft must file a demand letter upon the accused thief at least 30 days before filing a civil lawsuit in court. The accused thief could avoid civil liability by paying the sum demanded by the victim. The victim must provide a release from liability in writing to the alleged offender. Payment of a civil debt is not necessarily an admission of guilt, but it could help resolve the criminal case with a disposition that does not result in a conviction. You must consult with an experienced theft defense lawyer in Florida before making any statements about allegations made against you.
Finally, any conviction for a criminal offense in any court in the U.S., even for petit theft, could result in adverse immigration consequences. Any conviction of petit theft in Florida might allow the government to seek removal proceedings, deny citizenship, or deny re-entry into the U.S. if the offender is a non-citizen.
Shoplifting Offenses in Florida
Shoplifting is usually charged as a petit theft offense in Florida, provided that the value of the property does not exceed $750. If the value of the stolen property surpasses $750, then the case will be charged as a felony. Additionally, the shoplifting of a firearm is a third-degree felony irrespective of the value of the firearm.
The penalties for shoplifting, also called retail theft, are the same as petit theft unless the offender was once previously convicted for shoplifting. In that case, section 812.015(2) of the Florida Statutes requires the court to punish the offender more harshly than if the crime was a first offense. The judge could order the accused to pay a larger fine and order the accused to perform community service as a component of the punishment for shoplifting.
Shoplifting is more than concealing merchandise and walking out of the store without paying, although that is one common method of shoplifting. Other examples of behavior that could be prosecuted as shoplifting or retail theft are changing, removing, or altering price tags, switching merchandise from one container to another, wheeling a shopping cart out of the store, or in some way taking property that deprives the merchant of the benefit of the product through sale or trade.
Petit theft is essentially the same act as retail theft except that a person who commits retail theft steals from a merchant or a purveyor of goods.
Theft, when the perpetrator carries a firearm, irrespective of whether carrying the firearm was lawful itself, could implicate Florida’s 10-20-Life law. Under Florida Statutes §775.087, also known as the 10-20-Life law, the court reclassifies the underlying felony because of the presence of a firearm.
Florida law considers the presence of a firearm during the commission of a felony to be an aggravating circumstance. Thus, under the 10-20-Life law, a third-degree felony becomes a second-degree felony, a second-degree felony becomes a first-degree felony, and a first-degree felony becomes a life-felony. Additionally, if the person possessed a firearm during a theft, then the minimum punishment becomes ten years in the state penitentiary. The punishment escalates to a 20-year prison sentence if a shot was fired during the theft and becomes life in prison when another dies or suffers a grievous bodily injury during the commission of a felony enumerated in the statute.
Theft and robbery are related crimes. Both crimes involve the taking and carrying away of another’s property with the intent to deprive the owner of the benefit of the property. On the one hand, theft is stealing. Robbery, on the other hand, is stealing property that is in the control of another person or on another’s person accomplished by the threat of force or injury. The element of force or threat of force and taking property under the immediate control of the victim distinguishes robbery from theft.
Property Valuation in Florida Theft Crimes
The prosecutor has the burden to prove the guilt of the accused beyond a reasonable doubt on all elements of the crime alleged. The prosecutor cannot prevail if he or she proves four out of five elements beyond a reasonable doubt. Failure of proof on even one element of the case, even if it is a minor point and not the gravamen of the government’s case, the defendant is entitled to a judgment of acquittal from the jury or from a ruling by the trial judge even before the case goes to the jury.
One strategy for defending theft cases is to attack the government’s proof of the value of the property stolen. A judge or jury could find the accused guilty of a lesser-included offense than the conduct charged if the defense successfully attacks the value of the property. Florida law, as recited above, classifies the severity of the crime based on the value of the goods stolen. Therefore, a viable defense could lie in the lack of proof the government possesses with respect to the actual value of the items allegedly stolen.
For example, the government could file a charge for third-degree theft because the prosecutor believes the evidence will show that the value of the property was $750 or greater. Although the accused might have been caught red-handed, the defense attorney could argue that the government did not prove the value of the property beyond a reasonable doubt. Perhaps the state’s attorney only admitted enough evidence to show that the goods were worth only $95.00. In that case, then the jury could find the defendant guilty of only petit theft, which is a second-degree misdemeanor. The distinction is significant. The judge could only sentence the offender to no more than 60 days in jail for a second-degree misdemeanor. Conversely, a conviction for a third-degree felony could result in the offender’s incarceration for up to five years. The difference is staggering.
The prosecutor has two avenues to use to prove the value of the stolen property to prove a theft charge. The government could elect to prove the market value of the purloined property at the time and place of the theft. Failing that, the government could seek to admit evidence of the purchase price, the condition of the item when stolen, the amount the item could have depreciated, the quality of the property stolen, and the fair market value of the goods.
The practical import of the law relating to proving the value of the property is that the state’s attorney cannot simply rely upon the uncorroborated testimony of the alleged victim to estimate the value of the property without accounting for variables like the condition of the goods. A court might even accept the replacement value of the property as competent evidence of the value of the property stolen. In other words, the proof of the value of the case must be sufficiently definite based upon objective criteria and not a guess.
Shoplifting and the First-Time Offender
Getting arrested for shoplifting in Florida could be embarrassing, especially for a first-time offender. People who get caught shoplifting as a first offense could still go to jail. However, having a dedicated and savvy petit theft lawyer by your side, you might be able to beat the charges, get them dismissed, or receive a reduced sentence.
Arrests by law enforcement officers are made based upon probable cause. The investigating officer only needs enough evidence to prove that the suspect “probably” committed the crime alleged. The standard of proof is incredibly low and is usually easy to satisfy. However, when the prosecutor reads the police report before filing charges — which is essentially an affidavit from the police officer that recites the allegations of the case — the prosecutor could see that the proof needed for a guilty verdict is lacking and reduce the charge or abandon the charge altogether.
Contacting an aggressive criminal defense lawyer who understands how the system works is vital to mounting a successful defense and keeping your criminal history clean. Your attorney could speak with the prosecutor reviewing the case and persuade him or her to drop the case or offer entry into a diversionary program and then dismiss the case. Having an attorney fight on your behalf even before the prosecutor issues the charges formally will help you avoid starting a criminal record.
The prosecutor has options favorable to the defense, even if he or she is reluctant to dismiss the charges outright. The prosecutor could reduce the charge from a felony to a misdemeanor or reduce the misdemeanor charge one level. The key consideration is the lack of a prior criminal record. Florida prosecutors could be tough. They fight vigilantly to punish the guilty and protect society. However, there is a keen interest in helping preserve a person’s criminal history if it is possible, especially when the accused does not appear to be a candidate to become a repeat offender.
The prosecution has the authority to issue charges in Florida, but it is up to the judge to decide which punishment is appropriate. The judge could decide the appropriate punishment for a first-time offender, even if the prosecution refused to drop the charges during the review stage. A judge could order the accused to enter and complete a pretrial diversion program successfully. The pretrial diversion program requires the accused to attend classes, report to a probation officer, perform community service, and not get in any more trouble with the criminal law. If the accused satisfies all of these conditions and any other that the court might impose, then the court will dismiss the case. The accused has the option to return to court and ask that the case be sealed or expunged, so there is no record of it.
If pretrial diversion is not an option, then the next-best plea bargain would be withholding adjudication. The court does not enter a conviction in this instance. Instead, the court places the offender on probation and withholds a finding or adjudication of guilt for a specified time. The court will close the case without entering a guilty finding if the offender satisfies all of the conditions imposed by the judge. However, violating any term of probation could force the court to revoke its promise to withhold adjudication and enter a guilty finding. The court could re-sentence the offender at that point.
Sometimes the best option in a criminal case is to get the best plea bargain possible. However, some prosecutors are unwilling to negotiate and could force the case to trial. At trial, the government bears the burden of proof. The prosecutor must present evidence, and the defense is not constitutionally required to present any evidence whatsoever. However, a seasoned criminal trial attorney will vigorously cross-examine the government’s witnesses and scrutinize the evidence to illustrate the weaknesses in the state’s case and persuade the jury to acquit the accused.
Contact Musca Law Today. Your Life and Your Liberty Depend Upon It!
If you are facing petit theft charges in Florida, contact our seasoned Florida petit theft defense attorneys at Musca Law as soon as possible in order to preserve your legal rights and interests. Our firm’s attorneys are among The National Trial Lawyers – Top 100 Trial Lawyers, included in the 2012 Florida Super Lawyers® for criminal defense, and boast 10.0 Superb Avvo ratings. We know how to protect your future and understand petit theft laws. We are skilled, experienced, tenacious, and relentless when it comes to defending our clients.
Our seasoned Florida criminal defense attorneys work zealously to exploit the weaknesses in the prosecution’s case and develop a strategic defense for our clients. Our record of success in and out of the courtroom speaks for itself. To learn more about how Musca Law can make a difference for you, call (888) 484-5057 today.