Articles Posted in Theft Crimes

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When most people think of the crime of burglary, they think it involves someone breaking into a home or other building and stealing something that is inside.  In fact, in Florida the crime of burglary is much broader than that.  First, it can involve just about any building, including vacant buildings, and it can also involve other structures like a car or a boat.

Next, a person does not have to steal something inside the conveyance to be guilty of burglary.  If a person enters the conveyance with the intent to commit any number of crimes, that can be a burglary.  Finally, it is not even necessary for the perpetrator to enter the structure.  Putting a hand through a window can be sufficient for a burglary conviction.

In a recent burglary case south of Jacksonville, Florida, the defendants planned to burglarize a home and walked onto the porch in front of the home.  They tried to get into the home, but they could not find a way in.  Someone saw them and called the police.  They were arrested as they were leaving the home and ultimately charged with burglary of a dwelling.

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In Florida, there are a variety of criminal statutes that deal with fraudulently using a credit card or altering a credit card to use it in an unauthorized manner.  When a defendant allegedly violates one of these criminal statutes, it is up to the state to make sure they charge the appropriate crime.  If they do not use the correct charge, the case might get thrown out.

For instance, in a case just south of Jacksonville, Florida, the defendant had apparently used altered gift cards to purchase items at a grocery store.  The manager at the grocery store noticed that the gift cards had been altered and called the police.  When the police arrived and arrested the suspect, they found more altered gift cards in his possession.  The state charged the defendant under a Florida statute that deals with using an altered credit card to fraudulently obtain goods or services.  The criminal defense attorney moved to dismiss the charges because the credit card statute does not apply to gift cards.  Under the statute, the term “credit card” is specifically defined.  The statute gives examples of different cards that apply.  Each example refers to a card that is issued for the use of the cardholder.  The “cardholder” is also defined under Florida law as the person or organization whose name is on the card and for whom the card was issued.

As most people know, gift cards generally are not issued for a specific user.  They normally do not have the name of the recipient printed on the card.  Therefore, because the Florida criminal statute specifically refers to credit cards which are defined a certain way, and gift cards do not fall under the definition of credit cards, the criminal defense attorney argued that the defendant could not be guilty of that crime.  The court agreed, and the case was dismissed.

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In Florida, a theft is a felony offense, known as grand theft, if the value of the property stolen was $300 or more.  If the value of the property is significantly higher, the offense can be a second degree felony or a first degree felony depending on the circumstances.  If the value of the property is less than $300, the offense is a misdemeanor.  Therefore, when someone commits a theft, the level of the crime and how serious it is depends heavily on the value of the property stolen.  It is up to the state to prove that value beyond a reasonable doubt.  If the state cannot prove the value of the property is $300 or more, the offense will be a misdemeanor even if it seems obvious that the property is more valuable.

For example, in a recent theft case near Jacksonville, Florida, the defendant stole some used fencing material from a business.  The fencing material was old and had not been in use recently, so the business did not know its value or what they paid for it.  At the trial, the state did not present any evidence of the market value of the fencing but did have someone from a hardware store testify that the replacement value of the fencing was $450.  Based on that testimony, the defendant was convicted of grand theft.

The criminal defense attorney appealed the grand theft conviction and won.  According to the Florida theft statute, the state must prove beyond a reasonable doubt what the market value of the stolen property was at the time it was stolen.  If for some legitimate reason the state cannot determine the market value at the time of the theft, the state can rely on the replacement value of the property near the time of the offense.  In this case, the state did not attempt to prove the market value of the stolen property.  The state also did not establish why they were unable to prove the market value.  Without such proof of why they could not determine market value, the state was not permitted to use replacement value instead.  Additionally, the witness who testified about replacement value did not adequately prove replacement value.  The evidence of replacement value has to relate to similar property around the time of the theft.  The state must have some evidence of the condition of the property when it was stolen and/or how new the property was.  For instance, if used fencing material was stolen some time ago, the state cannot just being in a witness to say what new fencing would cost today.  The state must offer evidence of what used fencing materials would cost similar to what was stolen.

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In Florida, the crime of burglary involves a person breaking into or entering a place with the intent to commit a theft or other crime inside. The crime of burglary in Florida can get a little complicated based on the type of place that is entered, where the defendant was and what happened once inside. However, what is clear is that a person does not have to break in to be guilty of burglary. Simply going into a place without permission to steal something or commit certain other crimes inside is normally sufficient for a burglary conviction.

However, under Florida law, it is not a burglary if a person enters a place to commit a crime that is open to the public. In a recent burglary case near Jacksonville, Florida, the defendant entered a 7 Eleven store during normal business hours and stole money after threatening the cashier with a gun. The prosecutor charged him with several crimes including burglary with a weapon (the penalties for burglary with a weapon are more severe in Florida than a burglary without a weapon). The defendant was convicted of this charge, but the criminal defense lawyer appealed.

The conviction for burglary was reversed. It is a defense to burglary in Florida if the place that was entered was open to the public. That was the case here. Since the defendant walked into the store just as any customer would be permitted to do and stayed in an area where customers were allowed to be, it was not a burglary. This looks like a case where the prosecutor overcharged the defendant and wasted state money and resources on an extraneous charge as the prosecutor clearly had other serious charges to file that also come with severe penalties.

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As criminal defense lawyers in Jacksonville, Florida, we handle a wide variety of fraud and theft cases in state and federal courts. A common criminal case we see is one where a person receives government benefits, such as unemployment benefits, without proper authorization. For instance, a person might misstate certain facts in the benefits application that allows him/her to receive the benefits when he/she really is not eligible under the law to receive them. Other times, a person may be entitled to receive the government benefits initially, but due to changed circumstances, such as a new job or a marriage that brings a second income into the household, the person is no longer eligible to receive the benefits but fails to disclose the new information to the government and keeps getting the benefits despite no longer being eligible.

In these cases, it is common for someone in the government benefits office to contact the recipient and alert him/her that there is a problem. If it is confirmed that the person is receiving benefits improperly, the government agency will often offer the recipient a deal by which he/she acknowledges the fraud and agrees to pay the unauthorized money back. This can be a good deal, but it can also create problems for the recipient. It can work out great if the recipient agrees to pay the money back over time, pays the money back according to the plan and then the government agency closes the case without ever alerting the police. However, it can be problematic if the person admits the fraud to the agency, agrees to a plan to pay the money back but then fails to make the payments for whatever reason. In this scenario, which is common, the government agency normally will then take the case to the police or the prosecutor in which case an arrest and felony charges are likely. Additionally, because the recipient has likely already acknowledged the fraud to the government agency and agreed to pay the money back, it becomes difficult to defend the criminal case by denying the fraud. Of course, as usual it depends on the circumstances of the particular case. We have also seen cases where a person has agreed to pay the money back, was making the payments according to the plan and law enforcement still became involved resulting in criminal charges.

Fortunately, the state and federal prosecutors are usually reasonable in these kinds of cases, as long as the amount of money is not too significant. They will normally consider the fact that the defendant tried to pay the money back, especially if there is a valid reason for not being able to repay the full amount. But, these are still serious felony charges, in most cases, and it is important that they are handled correctly. When they are handled correctly with an experienced criminal defense attorney, it is possible for the charges to get dropped or for the defendant to otherwise avoid a criminal conviction so his/her record can be cleared.

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In Florida, robbery is a serious felony charge. Many people misunderstand the differences among robbery, theft and burglary. A theft generally occurs when you steal something from a person outside of their presence, or not in their possession. If you leave your phone on your desk and go to the bathroom and I take it while you are gone, that would be a theft. A burglary generally involves breaking into a place, or entering a place without authorization, with the intent to commit a theft or other felony therein. If I come into your house through an open window while you are at work and steal your TV, that would be a burglary. A robbery is considered more of a violent crime. It generally involves taking something directly from a person in the person’s presence. If I push you down and steal the bag you are carrying, that is a robbery. Likewise, if I approach you and threaten you with violence if you do not give me your bag, that would also be a robbery.

Actual violence or even physical contact is not necessary for a robbery conviction. Obviously, using the threat of violence or threatening someone with a weapon to take someone’s property is considered robbery. But, there is also a form of robbery referred to as robbery by sudden snatching. This normally involves snatching property from someone’s possession, like grabbing a person around someone’s shoulder or keys from someone’s hands. However, a recent case near Jacksonville, Florida shows that such force is not always necessary for a robbery by sudden snatching conviction.

In that case, the defendant grabbed a cell phone that was on the victim’s lap. The criminal defense lawyer argued this constituted the less serious charge of theft since the victim was not holding or embracing the phone. The appellate court disagreed, and the defendant was convicted of robbery. It appears that the crime of robbery by sudden snatching occurs when a defendant grabs an item that is being carried by the victim or is on the victim. If the defendant grabs an items next to the victim, perhaps where the victim put his bag or phone down on the table or a bench next to the victim, then that would likely be theft rather than robbery. But then again, it probably depends on the circumstances. It is an important distinction as a robbery charge normally yields a more serious sentence than a theft charge.

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In Florida, prosecutors often charge someone with burglary even when there is no direct evidence that the defendant was at the house, business or other location that was burglarized. Generally, a burglary involves a person entering some structure with the intent to commit a theft or other crime once inside. Where a suspect gets caught breaking into a house or leaving a house with stolen property, a burglary charge is easier to prove. However, many burglary cases in Florida are brought even when there is no direct evidence establishing the defendant was at the location that was burglarized. There is a jury instruction in Florida that says a jury can consider the fact that the defendant was in possession of stolen property shortly after the burglary to find a defendant guilty of burglary. This is the case if it is clear the property was in fact stolen and the issue is whether the defendant was the one who stole it. This instruction does not come into play when the defendant admits he/she took the property, but, perhaps, defends the case by saying he/she had a right to take it.

For example, in many cases, there will be a burglary of a house, car or other structure that can be pinpointed to a certain time, i.e. a victim hears that his car is bring broken into and immediately calls the police at 5:00 p.m. The victim says his laptop computer was stolen from his vehicle. The police will likely check local pawn shops. If the police uncover evidence showing the pawn shop that is 10 minutes away from the victim’s car has a pawn ticket and fingerprint from the defendant indicating he pawned the laptop computer at 5:15 p.m., that defendant will likely be charged with burglary, among other charges. While there may be no direct evidence, i.e. an eyewitness, that the defendant broke into the car and physically took the laptop, the state can get an instruction to the jury telling them they can consider the fact that the defendant had the stolen property shortly after the theft when considering a burglary charge. The defendant can always refute this instruction by claiming he had a reason why he had that stolen property unrelated to the burglary. This usually takes the form of a defendant claiming a friend gave it to him to sell or he bought it from a stranger and resold it. However, the closer the defendant’s possession of the stolen property is in time to the burglary, the less credible that kind of defense will be.

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In Florida, everyone understands that stealing items from a store is a crime. However, what may not be clear is that the conduct may be a misdemeanor or felony depending on the value of the item(s) stolen. Even less clear may be how that value is determined. This can be a critical issue in a defendant’s theft case because, in all likelihood, it is going to be much easier and much better to resolve a case in misdemeanor court than felony court. Misdemeanor crimes in Florida are those crimes that can result in a punishment of 12 months in jail or less. Most often, misdemeanor crimes such as petit theft result in no jail time, although it depends on the circumstances of the case, the defendant’s criminal history and other factors. Felony crimes in Florida are crimes that can result in a punishment of more than 12 months in prison. Felony prosecutors and felony judges routinely determine that defendants in their courtrooms deserve incarceration. Additionally, felony convictions come with the loss of certain rights that are not applicable in misdemeanor cases.

In Florida, the crime of shoplifting or theft is a misdemeanor crime if the value of the property is less than $300. If the value of the property is $300 or more, it is a third degree felony, and the crime becomes more serious as the value of the property increases. The value of the property in retail theft cases means the sale price of the merchandise at the time the property was taken. This is normally determined by the price on the price tag when the property is taken. Sometimes the police and/or prosecutors are confused about this. This can work to a defendant’s advantage or disadvantage. For instance, a clothing store may mark up the value of an item significantly. A shirt that sells for $100 may have a market value or wholesale value of much less. However, if a person steals three of them, he/she may be facing a felony theft charge even though the store paid much less than $300 for the three shirts.

On the other hand, consider a case we had several months ago at Shorstein, Lasnetski & Gihon, LLC here in Jacksonville. In December, a client went to a department store and stole several items. The loss prevention officer stopped him/her and recovered the stolen items. To determine the value of the stolen items, the loss prevention officer went to the store computer to determine the price at which the items normally sold. Using those figures, the total value came to close to $400, and our client was arrested for felony theft. Everyone knows that department stores advertise huge sales in December and mark the merchandise down significantly during that time. We checked the sale prices for similar items and determined that the sale prices on these items totaled closer to $250, which would make the crime a misdemeanor. The arresting officer simply relied on the inflated value figures from the store’s loss prevention officer, but a little investigation revealed the true figures applicable in a retail theft case were much lower. That was the difference between a felony charge and a misdemeanor charge for the client.

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In Florida, a person does not commit a crime by being present when someone else commits the crime and knowing the crime was committed. However, a person can be guilty of a crime if he/she did not actually commit the crime but assisted the perpetrator during or after the crime. That is called being an accessory to the crime and can result in serious felony penalties.

For instance, if two people go to a park and Person A robs the victim. Person B is there when the robbery took place and ran with Person A after the robbery. That alone does not make Person B guilty of robbery or accessory to robbery. If the state cannot prove that Person B knew Person A was going to commit the robbery, Person B had no involvement in facilitating the robbery and Peron B did nothing to help Person A escape from the robbery, Person B would not be guilty of a crime. Of course, the state might still charge Person B for the crime and it may ultimately come down to what the jury believes, but mere presence at a crime is not sufficient to prove commission of the crime.

Add one more fact, and Person B would be guilty of a crime. Assume Person A planned to commit the robbery without Person B’s prior knowledge, Person B sees it happen and after the robbery both Person A and Person B run away. They both run to a car, and Person B drives Person A away from the scene of the robbery. This now becomes a situation where Peron B helps Person A get away from the scene of the crime knowing a crime was committed. Now, Person B would be guilty of accessory after the fact of the robbery. If Person A and Person B ran away separately and went to different destinations, Person B would not be accessory. But if Person B assisted Person A in any way to escape the crime, Person B would then be guilty of a crime him/herself.

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In Florida, a person can be convicted of theft, which can be a felony or misdemeanor charge, depending on the value of the item stolen, if he/she takes the property of another with the intent to deprive that person of the property. The intent can be to permanently take the property or temporarily take the property. So, a defendant testifying that he/she intended to return the property is not necessarily a defense to a theft charge.

In Florida, a theft case can become a robbery case if the suspect used force either during the theft or after the theft when he/she was trying to get away. However, it would be possible for a person to commit a theft without force, abandon the property and then subsequent force would not be the basis for a robbery charge. A robbery charge is a felony and likely much more serious than a standard theft charge.

In a recent case near Jacksonville, Florida, the suspect stole some items from a department store. He was seen by store security and followed out of the store. The security officer chased the suspect, and the stolen items either fell out of the suspect’s jacket or were intentionally dropped. Thereafter, the officer caught the suspect who showed a gun to the officer and told him to back away. Even though the suspect did not use force or show the gun during the theft, he could still be charged with armed robbery for using the gun to get away with the theft. However, if he had abandoned the theft prior to showing the gun, the defendant could argue the two events were unrelated and a armed robbery charge was inappropriate.