Brad Post: Welcome to the floridadefense.com podcast. We are speaking to Tampa property crime charges defense attorney Mike Kenny. Mike, how are you doing?
Michael D. Kenny, Attorney: I’m doing pretty well. How are you?
B: Good. We’re going to be basically talking about the overall theft today. We’ve been in a series over robbery and burglary. Mike is with the Bauer, Crider, Kenny and Parry law firm there in Tampa and the surrounding areas. Mike, let’s talk about property crimes today.
M: Sure. What we’ve been talking about for a while, a lot of it centers around theft, the taking of an item. Florida has taken any kind of way you can steal something, whether it be embezzlement, whether it be theft by misrepresentation, and they pretty much put all under this one statute and it starts off at 812.014 in Florida statutes and that’s called Theft. It’s basically designed to say any time a person takes something knowingly, either permanently, or temporarily, commits a theft. The statute specifically says a person commits a theft if he or she knowingly obtains, or uses, or endeavors to obtain, or to use, the property of another, with the intent to either permanently, or temporarily deprive the other person the right to the property, or benefit from that property. So, that part “endeavors to obtain” that’s even an attempt. In Florida, there is no attempted theft. If you attempt to commit a theft you still fall under that theft statute, if they can prove that you endeavored to take something from someone either permanently or temporarily. That’s your basic theft definition. But, theft is, as you might know, it can vary depending upon the item that is taken. So, there is a large variety of ways a person be prosecuted for a theft.
There’s two main types of theft. You have your misdemeanor theft which is called petty theft in Florida. Then you have your felony theft which a grand theft in Florida. And that separating line is the minimum to go from a misdemeanor to a felony is $300 or more. So, if a person takes an item that is valued at $300 or more, that person has committed a grand theft which is a third degree felony punishable by up to five years in prison.
B: $300? Wow, okay.
M: That amount can change if the item is taken from a home. If the item is taken from home it is only $100 to be considered a grand theft.
Now, there are two types of misdemeanors. There is a first degree misdemeanor punishable by up to a year in jail. And then there’s a second degree misdemeanor punishable by a maximum of 60 days in jail, or six months of probation. And that is value specific. Basically anything under $100 would be a second degree misdemeanor. Or, if a person has a prior theft conviction, no matter what the value is, you would go from a second degree misdemeanor to a first degree misdemeanor. Then, of course, there’s a crime called felony petty theft. That means you’ve been previously convicted of petty theft before, and as a result of that previous conviction you commit another crime of theft (convicted two or more times in the past), and no matter what the value of the item is, it could be a candy bar, if you’ve been convicted two times before, you get tried with potentially a grand theft charge, called felony petty theft. Again, a third degree felony punishable by up to five years in prison.
Obviously, you were talking $300, but there’s cases that I’ve handled that we’re talking upwards of hundreds of thousands of dollars. When the amount begins to go up, the degree or level of felony begins to go up. So, the third degree felonies involve when I talked about $300 or more, there’s certain levels. Levels matter in Florida because levels kind of tell you what points your crime gets assigned. And that’s probably a little too much detail to get into today, but generally speaking, third degree felony at least, is from $300 or more, up to $10,000 or more, but less than $20,000. That’s the whole scheme of third degree thefts, and there is a whole bunch of levels in there that assign more points. Obviously, a $10,000 or more is going to get a higher amount of points assigned to it. And then you go up from there. A $100,000, or more, is where you get to the first degree grand thefts. Those are crimes punishable by up to 30 years in prison. And they carry significant levels assigned to him depending upon the amount. That almost gives you a minimum on the criminal punishing scoresheet where the judge has no discretion if you get convicted of it.
So, those are your basic schemes of theft. Thefts are very value intense. It matters what the amount was, and obviously your history. If you have been convicted of a theft in the past, no matter what the value is, that crime can be enhanced.
One of the unique things I don’t think a lot of people know about thefts, is that a conviction of a theft, no matter what the value is, can cause a person to lose his driver’s license. That’s obviously a concern. Especially for people who have been convicted on one or more occasions, but the statute specifically says that the judge may revoke a person’s driver’s license. Statute 812.0155 says that the court may order the suspension of a driver’s license of each person adjudicated guilty of any misdemeanor violation of 812.014 (which is a theft) or 812.015, regardless of the value of the property stolen. The court shall order the suspension a driver’s license of each person adjudicated guilty of any misdemeanor violation who has previously been convicted of such an offense.
So, those are two different statements. The first one says the court may. Meaning the court might say: an appropriate penalty here is a driver’s license suspension for a first-time offense. But, the next sentence says the court shall order the suspension. That means the court has no discretion. I can tell you that I’ve handled cases where the court may not have done that, but a lot of times that’s a result of a negotiated disposition perhaps where things occur, or whether the court maybe just simply overlooked it. But this statute says the court does not have the discretion, the court shall order the suspension of a driver’s license suspension for each person adjudicated guilty if they’ve got a previous adjudication.
So, know that these can become, snowball-type offenses. A simple act of stealing something that’s very insignificant. Maybe doing it a couple times. And then you get a driver’s license suspension, and then you find yourself with no way to get around. I have found that people suspended driver’s licenses tend to drive anyway. Because they have to. And then you begin just piling up the misdemeanor offenses until things become much more significant. It’s unfortunate.
B: All right. Anything else?
M: We were talking about the levels of theft. There is one avenue of theft that is pretty significant. There is a crime called dealing in stolen property in the state of Florida. Dealing in stolen property, it’s under statute 812.019. It says any person who traffics in, or endeavors to traffic in property, that he or she knows, or should know, was stolen, shall be guilty of a felony of the second degree. What that essentially means is, you know how people buy items occasionally, and they know the deal is just simply too good to be true? Like a television that fell off a truck? That is a potentially dealing stolen property charge. The way I typically see it both as a prosecutor, and as a defense lawyer, a person would take an item that he or she knows to be stolen and pawn it at a pawnshop, and get money for it. That’s usually how these dealings in stolen property charges come up. And what the State would have to prove is that that individual knew that this item was in fact stolen. Well, how does the State usually prove that? Well, because usually they know, or they are able to prove that the person who stole the item is the person who’s pawning the item. So, obviously if you stole it, you certainly know that it’s a stolen item when you take it to pawn.
I’ve seen a lot of cases where a person gets arrested for a theft of an item, and then pawning that same item in a pawnshop. The difference is, a dealing on stolen property is a second degree felony punishable by up to 15 years in prison. In the state of Florida, even if you never had a felony conviction before, you don’t have any criminal history at all, a second degree felony means the court has to adjudicate a person guilty. Meaning you’re a convicted felon if you’re convicted of this particular charge.
A grand theft, for instance, or a misdemeanor theft, say you steal a candy bar from a store, that you’ve never been in trouble before in the state of Florida, you get the benefit of what is called, on most cases, a withhold of adjudication. That means this court has not given a formal finding of guilt. And you can say you have not been convicted of a crime.
Dealing in stolen property, if you’re a convicted felon, your life substantially changes – very difficult to get a job, you can’t vote, can’t possess a firearm. And life gets a lot harder, if it wasn’t hard before. It is a lot harder and to be a convicted felon. So, what you see a lot is people steal items, and they pawn them, and there’s a lot of discussion about maybe allowing a person to plead to an amended charge, or doing something to where they’re not a convicted felon, if they’ve really got no prior criminal history.
The state of Florida also offers pretrial intervention which is if the prosecutor handling the case determines that you qualify for a diversion-type program, where you’re not in the court system, and the charges later get dismissed. That’s a wonderful benefit for folks who never been convicted of crimes before. The problem is that if you get a dealing in stolen property charge, it’s a second degree felony, and that’s not eligible for PTI-type charge. Of course, a lawyer can try to work to get that changed for you, but dealing in stolen property changes a lot when we’re talking about a theft charge.
The Florida statute stated that a person cannot be convicted of both a dealing in stolen property and a theft of the same item. So, if a person gets arrested for stealing a necklace, and then pawning it at a pawnshop. And he gets arrested. And he goes to trial on it. A verdict cannot be returned as guilty as the theft and to the dealing in stolen property. You can only be convicted of one. Usually what happens is the prosecutor picks which one to charge the person with. And in most cases they pick the highest charge – the dealing in stolen property. At least that’s been my experience as a prosecutor. So, it’s almost like playing chess sometimes. You figure out all these little moves that can happen, that can have an impact on the on the ultimate outcome which is which is a person’s life.
B: And that’s why you need an experienced Florida defense criminal attorney like you guys. Right?
M: There’s no doubt about it. What you don’t want when you’re when you’re talking about your life, when you talk about your future, what you don’t want is someone to do some on-the-job training with you. You want somebody who you are confident knows what he or she is doing. There is only really a couple ways to get there, right? Any lawyer can tell you he’s great. I can tell you I’m great trial lawyer. I can tell you that, but how do you know I’m telling you the truth?
One of the ways you know that the lawyer knows what he is talking about, is whether or not he is a board-certified criminal trial lawyer. That’s the highest recognition of a lawyer’s skill, competence, and ethics in a particular field. It shows that a lawyer has been in the business, and trying criminal cases for a period of time. He’s had a minimum amount of criminal trials tried to verdict, minimum amount of jury trials, had a minimum amount of felony trials, pass a specific rigorous examination designed to show that person can represent himself as an expert in that particular field. So, a lot of people can say something, but very few people, very few lawyers in the state of Florida, quite frankly, have that on have that distinction of being a board-certified criminal trial. My firm is lucky to have me, and another lawyer at my firm, have that designation.
B: Great. Anything else in property crimes?
M: No, sir.
B: All right. We’ve been speaking to Tampa property crime charges defense attorney Mike Kenny of the Bauer, Crider, and Parry law firm.