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Criminal Defense Lawyer Defines What Constitutes Theft

The number of ways one might be able to unlawfully take the property of another in the state of Florida is likely limited only by one's imagination. Florida has an entire chapter dedicated to Theft, Robbery, and Related Crimes. Specifically, the conduct which amounts to theft is outlined in Florida Statute 812.014, which states that a person commits theft if he or she:

  • knowingly
  • obtains or uses, or
  • endeavors to obtain or to use,
  • the property of another
  • with intent to, either temporarily or permanently
    • Deprive the other person of a right to the property or a benefit from the property.
    • Appropriate the property to his or her own use or the use of any person not entitled to the use of the property.

Practically speaking, let's talk about what that means. Florida Statute 812.012 provides definitions of some, but not all, of the relevant terms.

Knowingly

Let's start with "knowingly" as in "knowingly obtains." Knowingly is not defined by Florida Statute 812.012. Basically, it means you have to do it on purpose. So, for example, you are in your local box store buying diapers, scotch tape, chicken stock, and milk. Your three-year-old refuses to keep her sweater on, and she takes it off and puts it in the child seat at the front of the cart. Unbeknownst to you, she also puts a new pacifier in the cart, under her sweater. By the time you get to the front of the checkout line, you are cursing your decision to bring the three-year-old, who is, by now, in full melt down. You swipe your card, grab your receipt, and move to get out of the store as soon as possible, pushing the cart and carrying the out of control toddler. As you exit the store, you are stopped by security. There's the pacifier, under your child's sweater, not paid for! Theft? No. That's not a knowing taking.

Obtains or Uses

"Obtains or uses" is defined by statute. It means one of four different courses of conduct, three of which are pertinent to this discussion:

  1. Taking or exercising control over property;
  2. Making any unauthorized use, disposition or transfer of property; or
  3. Obtaining property by fraud, willful misrepresentation of a future act, or false promise.

(The fourth portion of the statute lists crimes as conduct and is not pertinent to our discussion here.)

Taking and Exercising Control

The simplest of these is probably "taking:" when something is in your hold or possession by voluntary action. In other words, taking is when you wrap your hands around something and pick it up. What about exercising control over property? Let's go back to the store. You pick up some scotch tape - you've committed a taking. You put it in your cart - you are exercising dominion and control. You put it inside your jacket pocket - you are also exercising dominion and control. Note that both taking and exercising control can be done with or without criminal intent.

Unauthorized Use, Disposition, and Transfer

"Unauthorized use" could mean taking your co-worker's BMW for a spin around the block without his permission. "Unauthorized disposition" could include eating your co-worker's lunch without permission. "Unauthorized transfer of property" could involve selling your mother's pearls on Craigslist when you don't, in fact, have permission to sell your mother's pearls.

Obtaining Property By Fraud and Willful Misrepresentation

How does one "obtain property by fraud?" Imagine we are still in the box store. You purchase all the ingredients for Thanksgiving dinner using a credit card with the name "Jeff Olson" on it. But you are not, in fact, Jeff Olson. This is a fraud. If you tell your friend, "If you lend me your car so I can drive Uber for the weekend, I will give you half of what I earn," when you have no intention of actually giving your friend any of the earnings, you are committing a "willful misrepresentation of a future act, or a false promise."

Endeavors to Obtain or Use

"Endeavors to obtain or use" simply refers to what we would call an "attempt." Practically speaking, if you list your mother's pearls on Craigslist, and communicate with a potential buyer, even if the sale isn't completed, you have "endeavored to obtain or use," and can be charged with theft. Similarly, if the clerk at the box store went to high school with you and knows perfectly well you are not Jeff Olson, and therefore doesn't allow you to use the credit card to make your purchase, you have still "endeavored to obtain or use" and can be charged with theft.

Property of Another

Florida statute also defines "property" in the context of "property of another." Property means "anything of value." It can be land, anything growing on the land, or anything found in the land. It can be personal property, which includes tangible items like your grandmother's china, and intangible things, such as rights and privileges. Property can be services, such as housekeeping services, repairs, professional services, admissions to exhibits and entertainment.

"Property of another" means, in its simplest terms, property that a person has an interest, and that the taker either doesn't have the same interest or is not allowed to take without consent. For example, your boss's bank account is not your property, and it's safe to say both that he has an interest in his bank account and you don't. Contrast that example with a situation wherein you are in a business venture with one other person. You have a joint checking account that requires both of your signatures for any purchase over $200. You can write a check by yourself to buy $195 worth of decorations for a celebration for your secretary's birthday. You cannot write a check by yourself to buy a $195,000 second home - because you are not allowed to take that amount of money without the consent of your business partner.

Intent to Deprive - Temporary and Permanent

The difference between lawful and unlawful conduct frequently depends on intent. Theft requires an intent to "either temporarily or permanently deprive the other person of a right to the property or a benefit from the property or appropriate the property to his or her own use or the use of any person not entitled to the use of the property." If you take your co-worker's car for a spin, you are temporarily depriving your co-worker of having the right to the property. If you eat your co-worker's lunch, you are permanently depriving your co-worker of the right to the property (the lunch).

Intent to Deprive - Benefit and Appropriation

What about the "benefit of the property?" Recall property has a broad definition. Say you are home when there's a knock on the door. You answer and in walks a woman bogged down with various cleaning supplies. "Susan?" she asks. "Your mom sent me over to clean your house as a birthday surprise at no cost to you." Imagine you are not Susan. Susan lives in apartment 333 and you are in apartment 331. If you remain silent, allowing her to clean your house, you are "depriving" Susan of the benefit of the property. When you take Susan's grandmother's china, and use it as your own, you have "appropriated" the china "to your own use." If you give Susan's grandmother's china to your best friend, you have "appropriated" the china "to the use of any person not entitled to the use of the property."

To obtain a conviction for a theft charge, the state must prove each and every element of the offense. Having an experienced theft criminal defense attorney is critical to help you determine your best course of action if you are charged with a theft crime. Call a tenacious theft criminal defense attorney with Canan Law at 904.824.9402 for a free consultation.

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