Definition of Petit Theft
As outlined in Section 812.014, Florida Statutes, petit theft occurs where a person steals or endeavors to steal property from a person or business when the value of the property is less than $300. The theft does not have to occur in a store.
Elements of Theft
To prove the crime of Petit Theft at trial, the prosecution must establish the following two elements beyond a reasonable doubt:
- The defendant knowingly and unlawfully obtained or used (or endeavored to obtain or use) the property of the alleged victim;
- The defendant did so with the intent, either permanently or temporarily, to: (a) deprive the victim of [his] [her] right to the property or any benefit from it, or (b) appropriate the victim’s property to the defendant’s own use or to the use of any person not entitled to it.
Florida’s petit theft statute requires a finding of specific criminal intent by a defendant to deprive a victim of his rights to property, or to ‘appropriate’ the property of the victim to the defendant’s own use. State v. G.C., 572 So. 2d 1380, 1381-82 (Fla. 1991) (describing specific intent requirement in the context of Section 812.014, Florida’s omnibus theft statute).
Thus, the State must show not only that an intentional taking took place, but also that the defendant carried out his or her actions specifically intending to steal (i.e. to deprive an owner of property either permanently or temporarily). T.L.M. v. State, 755 So. 2d 749, 751-52 (Fla. 4th DCA 2000) (reversing theft conviction where the evidence showed only that the defendant took an object for a brief moment to express anger).
The intent of the defendant is, generally speaking, a question of fact for the jury that may be inferred from the surrounding circumstances. Mosher v. State, 750 So. 2d 120 (Fla. 3d DCA 2000); State v. Stenza, 453 So. 2d 169, 171 (Fla. 2d DCA 1984). There must, however, be some substantial competent evidence from which a jury may reasonably infer the intent. Id.
Penalties for Petit Theft
In Florida, Petit Theft is classified a second degree misdemeanor, which can result in up to 60 days in jail. A second offense can be charged as a first degree misdemeanor, and is punishable by up to one year imprisonment, and will result in a loss of your driving privileges.
Under Section 812.0155, Florida Statutes, a court may suspend a person’s driver’s license for a period of six months where the person is adjudicated guilty of misdemeanor petit theft. The court must order the suspension of driving privileges for a period of one year where a person is adjudicated guilty of a second offense.
Petit theft is considered a “crime of dishonesty,” and a conviction will create a permanent criminal record that may bar a person from employment, professional licenses, and acceptance into colleges.
Attempting or Endeavoring to Steal
Under Section 812.014(1), Florida Statutes, a person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or use, the property of another with the appropriate criminal intent.
In interpreting this definition, Florida appellate courts have held that the crime of attempted theft does not exist because, by including the words, “endeavors to obtain or use,” the legislature evinced an intent to define “theft” as including the mere attempt to commit theft.
Thus, a completed theft crime is fully proven when an attempt, along with the requisite intent, is established. Longval v. State, 914 So. 2d 1098, 2005 (Fla. 4th DCA 2005). There is no requirement that a defendant pass all points of sale or actually leave the store or place of business.
Temporary Taking of Property
In prosecutions for Petit Theft, the length of time property is taken or used by a defendant is relevant to the inquiry regarding the defendant’s intent.
A momentary taking, for mere seconds, does not constitute the specific intent necessary to sustain a conviction for theft. T.L.M., 755 So. 2d at 751-52 (throwing a fire extinguisher after holding for mere seconds was insufficient evidence to establish intent to steal).
The taking or possession of an item for longer than mere seconds, however, will generally be sufficient to create a question of fact for the jury and permit the State to survive a motion for judgment of acquittal. Peoples v. State, 760 So. 2d 1141 (Fla. 5th DCA 2000) (upholding theft conviction where an inmate took a fire extinguisher for mere minutes in order to commit a battery).
Proof Used at Trial
For the charge of theft or retail theft, the prosecution will use a variety of tools to prove its case.
The State may rely on the testimony of loss prevention officers, video surveillance, written statements of the accused, admissions of the accused, testimony of other customers who witnessed the incident, receipts and other business records, testimony of co-defendants, and introduction of the items taken or photographs of the items taken.
Petit Theft Defenses
There are numerous available to contest a charge of petit theft or retail theft (shoplifting) in Florida. Some common examples include the following:
- Mistaken identity;
- Mistaken accusations;
- Poor quality video creating a factual dispute about a suspect’s identity;
- False accusations by loss prevention officers;
- Customer mistakenly leaving the store;
- Momentary deprivation of property;
- Customer forgetting about items placed in a bag or stroller;
- Being set up by a co-defendant;
- Items not found in the possession of the accused;
- Exiting the store for purposes other than to steal (i.e. to retrieve a wallet or purse in order to pay);
- Taking items for purposes other than to steal;
- Price tags being altered or removed by previous customers.
Abandonment and Renunciation
In cases where the allegation is that the defendant endeavored (i.e. attempted) to steal, the defense of voluntary “abandonment” may be available.
Abandonment is also referred to as “withdrawal” or “renunciation.” For this type of defense to apply, the evidence must show that the accused abandoned his or her attempt to commit theft (or otherwise prevented its commission) under circumstances manifesting a complete and voluntary renunciation of his or her criminal purpose. See Fla. Stat. § 777.04(5)(a); Longval, 914 So. 2d at 1100;
If raised at trial, the burden rests with the defendant to establish the elements of abandonment by a preponderance of the evidence. Harriman v. State, 174 So. 3d 1044, 1050 (Fla. 1st DCA 2015).
Pretrial Intervention for Petit Theft
A theft charge is a serious matter and not every case will have a viable defense. Fortunately, most counties in Florida offer “diversion” programs for a first arrest, including Pretrial Intervention (PTI).
A diversion program such as PTI is an alternative means of disposing of a case without the necessity of a plea or a trial. It is an agreement between the accused and the Office of State Attorney whereby the State agrees to dismiss the case in exchange for the accused completing certain conditions within a specified period of time. These conditions often include community service, retail theft or financial responsibility classes, restitution payments, the payment of monthly program fees, and other requirements designed to rehabilitate the accused and ensure there are no future law violations.
By resolving a case through Pretrial Intervention, the case is “diverted” away from traditional court action. A defendant can be disqualified or rejected from the diversion program if the alleged victim in the case (the store) is opposed to your participation in the program, or if you have been previously convicted of a crime or have previously enrolled in a diversion program.
Importance of an Attorney
Legal representation is critical to avoiding or minimizing the harsh consequences of a theft charge. An attorney can identify defenses that may be applicable in a case, and advise a client on the best course of action to avoid a permanent record.
If you have been accused of petit theft, retail theft, or shoplifting in Jacksonville, Orlando, or the surrounding counties of northeast and central Florida, contact the attorneys at Hussein & Webber, PL for a free consultation.