Jon H. Gutmacher, Esq.

Orlando Criminal Defense Lawyer

Former Prosecutor & Police Legal Advisor,

Author: "Florida Firearms -- Law, Use & Ownership",

NRA Certified Firearms Instructor,

NRA Referral Attorney.

JON H. GUTMACHER, P.A.: Orlando Criminal Trial Attorney Services

Theft And Fraud Cases: The Crime Of Theft In Florida

The crime of theft covers a broad range of charges involving the misappropriation of the property or funds of another, and is generally covered by Chapter 812 of the Florida Statutes. The most simple definition for theft under the Florida criminal laws is a person who knowingly obtains or uses the property of another with the intent to deprive the owner or possessor of the use of that property either on a permanent or temporary basis. [Florida Statute 812.014] As a rule, a theft which is a felony is considered a “grand theft”, and thefts which are misdemeanors are considered as a “petty theft” or “petit theft”.

Theft is a third degree felony punishable by up to five years imprisonment when the property is valued at $300.00 or more. Same thing if the property stolen is a firearm, will, motor vehicle, farm animal, stop sign, construction materials from a designated construction site, or anything from a dwelling or its curtilage that has a value of $100.00 or more. Penalties are usually increased where the value of the property exceeds $5,000.00, and may constitute a second degree felony or first degree felony depending on the value of the property and other factors.

Since the crime of theft requires that the accused intentionally take property they know isn’t theirs – a defense to the charge is "mistake". Mistake is an affirmative defense (ie: you gotta prove it in court) where you must be able to show that your taking of the property was made based on a good faith belief that you were the owner of the property, or had an immediate legal right to possession. Likewise, a good faith belief and reasonable belief that the property is yours – even if ownership is disputed – also constitutes the defense of mistake. The big problem with this last defense usually occurs when someone breaks into another person’s home or business trying to retrieve property they believe is theirs. While there is certainly a defense to the taking of the item – the breaking and entering portion of the charge may constitute a felony, or a misdemeanor at the very least.

My experience as a criminal attorney in theft cases usually occurs where an employee is wrongfully charged with the crime. This is usually due to inventory control problems (somebody else steals an item, or the inventory records aren’t well kept – and it only looks like things are missing – but they’re not). I’ve also seen where one employee was set up by another, or where the business had no idea who really stole the merchandise or money – and just picks the "most likely" employee. Many times these people are completely innocent, and have no idea why they are being charged. Likewise, I’ve handled cases where customers were arrested for taking goods they actually paid for, or were trying to return. Some of these situations involved bad checks, “Nigerian” check schemes, internet fraud, employment fraud, and ticket counterfeiting. Of course, this type of charge is devastating to anyone’s career, and the defense can be complicated.

As a Florida criminal lawyer, and even when I was a prosecutor, I’ve rarely handled a theft case that was dropped by the State. While there have been exceptions, especially where my client was a victim of internet check fraud, the general rule is that either there’s a plea involved – or you go to trial. Moreover, restitution is almost always involved. On the other hand, I think a good criminal lawyer can have great success at winning these cases where there is a legitimate defense.,


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