Retail Theft in Florida
The crime of Retail Theft involves the unlawful taking of merchandise or property from a merchant, usually as part of an organized shoplifting ring.
Under Florida Statute 812.015(1)(d), the crime of Retail Theft is committed when a person deprives a merchant of possession, use, benefit, or full retail value of merchandise by intentionally:
- Taking possession of merchandise, property, money, or negotiable documents belonging to a merchant;
- Altering or removing a label, universal product code, or price tag from merchandise;
- Transferring merchandise from one container to another; or
- Removing a shopping cart from the merchant's business.
Proving Value
The value is determined by the sale price of the merchandise at the time it was stolen or otherwise removed, depriving the owner of their right to ownership and sale of the merchandise. [1] Consequently, it is irrelevant whether the “market value” of a stolen item may be significantly more or less than what the price tag reflects. [2]
Further, if a person commits multiple acts of retail theft, the value of each individual retail theft committed within a 30-day period is aggregated together to determine the total value of the property stolen from a merchant. [3]
However, if the prosecutor is unable to prove the total value of either an individual theft or multiple thefts within a 30-day period was more than $750, the charge(s) would constitute petit theft, which is more commonly referred to as shoplifting.
Retail Theft vs. General Theft
The Retail Theft statute allows a prosecutor to charge an individual or multiple people who are part of an organized shoplifting ring with a felony based on the aggregate retail value of merchandise stolen during a thirty (30) day period, even if the retail value of each individual theft was less than $750.
Generally, if the person is not part of an organized shoplifting ring or has not engaged in multiple thefts from the same merchant, they will be charged with under the general theft statute.
Penalties for Retail Theft
There are two degrees of Retail Theft that can be committed in Florida. The degree of the crime and the corresponding penalties increase based on the value of the property taken and the person's prior Retail Theft convictions.
The two degrees of Retail Theft in Florida are:
Third Degree Felony Retail Theft
Third Degree Felony Retail Theft is committed when the aggregate retail value of merchandise taken over a thirty (30) day period is worth more than $750.
Third Degree Felony Retail Theft is punishable by up to five (5) years in prison, five (5) years of probation, and $5,000 in fines.
Third Degree Felony Retail Theft is assigned a Level 5 offense severity ranking under Florida’s Criminal Punishment Code. A judge may sentence a person convicted of Third Degree Felony Retail Theft to probation, but may also sentence the person up to the statutory maximum of five years in prison.
Second Degree Felony Retail Theft
Second Degree Felony Retail Theft is committed if:
- The aggregate retail value taken over a thirty (30) day period is worth more than $3,000; or
- The defendant has previously been convicted of Retail Theft and commits a subsequent Retail Theft.
Second Degree Felony Retail Theft is punishable by up to fifteen (15) years in prison, fifteen (15) years of probation, and $10,000 in fines.
Second Degree Felony Retail Theft is assigned a Level 5 offense severity ranking under Florida’s Criminal Punishment Code. A judge may sentence a person convicted of Second Degree Felony Retail Theft to probation, but may also sentence the person up to the statutory maximum of fifteen years in prison.
Statute of Limitations for Retail Theft
Pursuant to Florida Statute 812.035(10), a five year Statute of Limitations applies to the crime of Retail Theft and controls over the general statute of limitations otherwise applicable in all criminal cases under section 775.15.
As a result, a prosecution for Retail Theft can be brought up to five years after the offense was committed (and even longer in some cases). [4]
Defenses to Retail Theft
In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, specific defenses to the crime of Retail Theft are:
Equal Ownership
A co-owner of property cannot be convicted of Retail Theft for taking the property unless the complaining co-owner had a superior legal interest in the property. [5]
Good Faith Belief
Under Florida law, the crime of Retail Theft requires proof of a taking with the intent to steal. So a person who takes possession of an item with the good faith belief in the right to the property lacks the requisite intent to commit Retail Theft. As a result, a well-founded belief in one’s right to allegedly stolen property constitutes a complete defense to the crime of Retail Theft. [6]
Mere Presence
Under Florida law, mere presence at the scene of a crime, mere knowledge that an offense is being committed, or even a display of questionable behavior after the commission of a crime is insufficient, standing alone, to establish participation in the crime. [7]
As a result, if you accompany a friend to a store and the friend commits a Retail Theft, you cannot be convicted as an accomplice unless it can be shown you did something in furtherance of the crime of Retail Theft.
Valueless Property
Simply put, it is impossible to steal trash because Florida law only criminalizes the stealing of “property.”
Thus if a merchant places something in the dumpster, it has become trash that presumably has no value. [8]
Voluntary Abandonment
It is a defense to the crime of Retail Theft to abandon the attempt to commit the Retail Theft under circumstances indicating a complete and voluntary renunciation of the criminal purpose. [9]
Involuntary Abandonment
While voluntary abandonment is a defense to the crime of Retail Theft, involuntary abandonment is not a defense. The distinguishing characteristic between the two is the reason for abandoning the Retail Theft. [10]
A voluntary abandonment occurs when your conscious, unprompted by encountered circumstances, causes you to withdraw from the attempted Retail Theft.
On the other hand, an involuntary abandonment occurs when unanticipated circumstances (i.e. belief scheme discovered) causes a person to withdraw from the attempted Retail Theft.
Contact Criminal Defense Lawyer Richard Hornsby
If you have been arrested or charged with the crime of Retail Theft in Central Florida or the Greater Orlando area, contact Orlando Criminal Defense Lawyer Richard Hornsby today.
The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.
References
- Florida Statute 812.015(1)(c)
- F.T. v. State, 146 So. 3d 1270, 1272 (Fla. 3d DCA 2014)
- Florida Statute 812.015(8)(a)-(c)
- Schuster v. State, 21 So. 3d 117, 118 (Fla. 5th DCA 2009)
- Russ v. State, 830 So. 2d 268 (Fla. 1st DCA 2002)
- Bartlett v. State, 765 So. 2d 799 (Fla. 1st DCA 2000)
- Gabriel v. State, 254 So. 3d 558 (Fla. 4th DCA 2018)
- Holloway v. State, 755 So. 2d 169 (Fla. 4th DCA 2000)
- Longval v. State, 914 So. 2d 1098 (Fla. 4th DCA 2005)
- Carroll v. State, 680 So. 2d 1065 (Fla. 3d DCA 1996)