Theft Offenses in St. Petersburg, Clearwater, and Tampa

Like most criminal offenses, theft requires proof of intent to commit the proscribed act. A person may be prosecuted for a theft offense if he or she takes the property of another, without authorization, or even attempts to do so, as long as it is done knowingly. Of course, a person may be prosecuted for failing to pay for services too - theft does not always involve tangible items. Whether a person walks out of a convenience store without paying for a pack of gum or refuses to pay a cab driver for transportation, he or she can expect to be charged with theft.

Theft offenses in Florida can be prosecuted as either felonies or misdemeanors, depending on the underlying circumstances. One of the criteria that

distinguishes a felony theft offense from a misdemeanor theft offense is the value of the item taken (or the value of the service that was not paid for). If the value is $300.00 or more, then the offense constitutes a felony. If the value is less than $300.00, then the offense constitutes a misdemeanor. Obviously, there are very big differences in the potential penalties associated with felony offenses versus misdemeanor offenses, as described in greater detail below.

In a felony situation, the accused person is usually arrested on the spot and the matter is thereafter referred to the State Attorney's office for prosecution. If the assigned prosecutor determines that there is a reasonable likelihood of successful prosecution, and that prosecution is otherwise warranted, he or she will file a charging document called an "Information", and the case will be docketed for an arraignment. If the accused person cannot be located, or there is additional investigative work that needs to be done, the law enforcement officer will usually refer the matter to the State Attorney's office for review and follow-up work. If the prosecutor decides to proceed, he or she will file the Information, and a warrant will be issued for the accused person's arrest.

In a misdemeanor situation, the police officer can either take the person into custody, or issue what is called a "Notice to Appear". In most instances, a misdemeanor offense must be committed in the police officer's presence before the officer can make a warrantless arrest, but theft crimes constitute an exception to this general principle. If the accused person has ties to the community, and the officer believes that the person will appear in court, the officer can issue a Notice to Appear (with a pre-set court date written on the face of the document). This is done in the officer's sole discretion and in lieu of making a physical arrest (the officer does not have the discretion to issue an NTA in a felony case). If the matter is referred to the State Attorney for follow-up (without an arrest having been made or an NTA issued) and the prosecutor files an information, the accused will receive a summons in the mail (instead of a warrant - as would be the situation in a felony case).

Where a physical arrest is made, either for a felony or misdemeanor theft offense, the person is entitled to a reasonable bond, and may be released on his or her own recognizance. As a condition of release, the judge will usually require that the accused have no contact with the alleged victim or stay away from the premises from which the theft is alleged to have occurred.

As indicated above, a person may also be prosecuted for a felony theft offense based on the nature of the item taken, without regard to its value. Examples include a will or other testamentary instrument, a firearm, a fire extinguisher, a stop sign, a motor vehicle (although most motor vehicles will have a value greater than $300.00) or any amount of a controlled substance. A person may also be prosecuted for a felony if the property is taken from a designated construction site.

If the accused person commits what would otherwise be a misdemeanor theft offense, and he or she has at least two prior theft convictions, the state can file a felony charge against that person. There is no "look back" period here - it does not matter when (or where) the prior convictions occurred. If the state can prove them up, the accused person can expect to be charged with a felony offense.

As with all misdemeanor offenses in Florida, sentencing guidelines do not apply. If the value of the property (or service) taken is less than $100.00, the person has no prior theft convictions, and the nature of the item taken does not constitute a felony (e.g. a will, car, firearm, etc.), the person will be charged with a second-degree misdemeanor. Second-degree misdemeanors are punishable by up to sixty days in the county jail and up to six months of probation. If the value of the property (or service) taken is $100.00 or more, but less than $300.00, if the person has only one prior conviction for theft, and the nature of the item taken does not constitute a felony offense, the person will be charged with a first-degree misdemeanor. A first-degree misdemeanor is punishable by up to a year in the county jail, a year of probation, or some combination of the two (the total sentence cannot exceed twelve months). In many instances, the person will qualify for a diversion program or a withhold of adjudication, which will avoid a conviction on his or her permanent record. The accused person may also qualify to have the arrest record sealed or expunged, depending on the manner in which the case is resolved and the existence of any prior criminal convictions.

If the value of the item taken is between $300.00 and $20,000.00, the offense constitutes a third-degree felony. In Florida, a third-degree felony is punishable by up to five years in state prison. If the stolen property is valued at $20,000.00 or more, but less than $100,000.00, the offense constitutes a second-degree felony. A second-degree felony is punishable by up to fifteen years in state prison. If the property stolen is valued at $100,000.00 or more, the offense constitutes a first-degree felony. A first-degree felony is, generally speaking, punishable by up to thirty years in state prison. These are, however, the maximum penalties that can be imposed. Imposition of the maximum penalties in theft cases is rare.

The minimum incarcerative penalties are determined by Florida's sentencing guidelines. Once again, guidelines apply only in felony cases. In most instances, a theft offense will not score mandatory prison on the sentencing guidelines. If the person has no prior record, or no prior felony record, pre-trial diversion or a withhold of adjudication with probation may be an option. If however, the value of the item(s) taken exceeds $100,000.00, if the person has more serious offenses before the court for sentencing, or has an extensive prior criminal history, he or she may very well be facing prison time. Sentencing guidelines are complicated and it is beyond the scope of this article to address the particulars. An experienced criminal defense attorney can explain the application of the sentencing guidelines to your case and any potential guideline departures that may be available.

No matter how the case is resolved, the accused person can expect to be required to pay restitution (for the value of the item taken from its owner) where the item was not recovered or was damaged as part of the commission of the crime. Many chain retail outlets will also attempt to collect civil damages for the taking of their property, whether the items were recovered or not. Completion of a shoplifter's awareness class and community services hours are usually imposed as a condition of sentence as well. If the person is convicted of the theft offense, Florida law mandates the suspension of his or her driver's license. The applicable statute provides for a suspension of up to six months for a first offense, and up to a year for a second or subsequent offense. If , however, the person successfully completes a diversion program, or received a withhold of adjudication, the license suspension will not apply. Also, theft is a crime of moral turpitude, which could have some significant collateral consequences for a non-U.S. citizen in the event of a conviction (felony or misdemeanor). While non-U.S. citizens should consult with an immigration attorney in any criminal proceeding, this is especially so in a theft case.

No matter what the circumstances of your theft case may be, an experienced criminal defense attorney can help. There is usually much that can be done, particularly where the attorney becomes involved early on, to mitigate (or even eliminate) the impact of the theft charge. Specific questions should be directed to a qualified criminal practitioner in your area.

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ABOUT THE AUTHOR: Donald J. Kilfin
Attorney Donald J. Kilfin is a former Pinellas County state prosecutor. He owns and operates The Kilfin Law Firm, P.C., a Tampa Bay DUI and criminal defense firm representing clients in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City, and Bradenton.

Copyright The Kilfin Law Firm, P.C.



Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.