What is Theft in Florida? The Law and Defenses

June 27, 2024 Don Pumphrey, Jr. Criminal Defense, Theft/Property Crimes Social Share

What is Theft in Florida? 

A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another person – with the intent to temporarily or permanently deprive that other person of the right or benefit of that property. Theft also occurs if a person appropriates property for personal use or for the use of any person not entitled to the use of the property.  

In other words – somebody takes someone else’s stuff and either uses it, puts it somewhere else or gives it to someone else without permission. Like my mother used to say, “Don’t touch that, it does not belong to you!” Pretty simple? You would think so. But there can always be instances of human behavior that are accidental, unintentional or due to some mental defect.  

Note: Voluntary intoxication is not a defense. The Florida Supreme Court recommended the abolition of voluntary intoxication as a defense in Frey v. State, 708 So.2d 918 (Fla. 1998). A year after this decision was rendered, the Florida Legislature abolished voluntary intoxication defense for any crime by enacting Florida Statutes Section 775.051. 

The only time in which voluntary intoxication can still be relied on for a defense is if the substance that was voluntarily ingested and allegedly caused the criminal behavior was lawfully prescribed by a medical professional. However, involuntary intoxication as a defense is alive and well. The same goes for defenses such as necessity, and other defenses to theft detailed below. 

An example of involuntary intoxication is if someone were to take a prescribed drug such as Ambien, the proverbial “lights are on, but nobody is home” – and that person then picks up somebody else’s item and takes it, thinking it’s their own. (By the way, don’t take anything without a doctor’s prescription and even then, only do so in a controlled setting.)

Florida Statutes 812.014 governs theft in Florida. In states, in part:

(1) 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:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

(2)(a)1. If the property stolen is valued at $100,000 or more or is a semitrailer that was deployed by a law enforcement officer; or

2. If the property stolen is cargo valued at $50,000 or more that has entered the stream of interstate or intrastate commerce from the shipper’s loading platform to the consignee’s receiving dock; or

3. If the offender commits any grand theft and:

a. In the course of committing the offense the offender uses a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense and thereby damages the real property of another; or

b. In the course of committing the offense the offender causes damage to the real or personal property of another in excess of $1,000,

the offender commits grand theft in the first degree, punishable as a felony of the first degree, as provided in s. 775.082, s. 775.083, or s. 775.084.

(b)1. If the property stolen is valued at $20,000 or more, but less than $100,000;

2. If the property stolen is cargo valued at less than $50,000 that has entered the stream of interstate or intrastate commerce from the shipper’s loading platform to the consignee’s receiving dock;

3. If the property stolen is emergency medical equipment, valued at $300 or more, that is taken from a facility licensed under chapter 395 or from an aircraft or vehicle permitted under chapter 401; or

4. If the property stolen is law enforcement equipment, valued at $300 or more, that is taken from an authorized emergency vehicle, as defined in s. 316.003,

The offender commits grand theft in the second degree, punishable as a felony of the second degree, as provided in s. 775.082, s. 775.083, or s. 775.084. Emergency medical equipment means mechanical or electronic apparatus used to provide emergency services and care as defined in s. 395.002(9) or to treat medical emergencies. Law enforcement equipment means any property, device, or apparatus used by any law enforcement officer as defined in s. 943.10 in the officer’s official business.

Other offenses, including petit theft, are governed under Florida Statutes 812.014. The difference between petit and grand theft is that items allegedly stolen during a petit theft are worth under $750.

History of Theft and Defenses to Theft

 Theft of all types has been illegal in Florida and throughout the United States for centuries. Theft is considered a malum in se offense, which means it is recognized as an inherent moral wrong. This contrasts to malum prohibitum offenses, which are illegal but not necessarily morally wrong (for example, going above the designated speed limit on a particular road).

There are two types of theft: petit and grand theft. While these are both theft, one is a type you would observe with someone taking an inexpensive item from a gas station, such as a pack of gum. The other involves the theft of an object that is far more valuable (such as a vehicle or an expensive television). In Florida, petit theft becomes grand theft when the item(s) stolen is worth over $750 under Florida Statutes Chapter 812.014.

The dollar amount of the item stolen where petit theft becomes grand theft depends on the state that an individual lives in. The Supreme Court ruled in Rummel v. Estelle, 445 U.S. 263 (1980)

that individual states are permitted to draw the line between what constitutes petite or grand theft wherever they please, so long as this is not “cruelly or unusually” done in accordance with the Constitution’s Eighth Amendment protection from cruel and unusual punishment.

Importantly, Florida’s statute regulating theft requires that a person “knowingly” obtain or use, or endeavor to obtain or use, the property of another. If an individual has a good faith belief that the property belongs to them, or they did not know that they were stealing, a conviction can’t be sustained under Florida law.

Notably, voluntary intoxication is not a defense to theft or any other crime in Florida. Thus, if an individual did not know they were guilty of violating the statute due the fact that they voluntarily consumed alcohol or drugs and subsequently committed the offense, they cannot raise this as a defense to theft charges. Florida Statutes Section 775.051 notes:

“Voluntary intoxication resulting from the consumption, injection, or other use of alcohol or other controlled substance as described in chapter 893 is not a defense to any offense proscribed by law. Evidence of a defendant’s voluntary intoxication is not admissible to show that the defendant lacked the specific intent to commit an offense and is not admissible to show that the defendant was insane at the time of the offense, except when the consumption, injection, or use of a controlled substance under chapter 893 was pursuant to a lawful prescription issued to the defendant…” Florida Statutes Section 775.051

However, various defenses have been successfully raised to theft charges in Florida courts. These include lack of knowledge that the item is being misappropriated, duress, and coercion.

A notable case in which a defendant accused of grand theft auto (grand theft of a vehicle) was ultimately acquitted due to a lack of knowledge defense was A.M. v. State, 244 So.3d 1332 (5th DCA 2017). The court in A.M. ruled:

“​​In order for a person to commit grand theft of a motor vehicle, he or she must exercise some control over the vehicle, and at a minimum have knowledge that he lacked permission to drive, occupy, or enter that vehicle. See M.D.S. v. State, 982 So.2d 1282, 1284 (Fla. 2d DCA 2002).” A.M. v. State, 244 So.3d at 1337.

The A.M. ruling – affirming that an individual must have possession of an item that is being stolen and knowingly misappropriating it – supports the central principle that intent is central to theft as a crime. But lack of knowledge is not the only defense that has been raised to theft.

Another defense that has been successfully raised in Florida courts to theft is consent. It is notable that in order to affirmatively argue consent, the defendant must first establish they are using a defense of consent and provide evidence of consent, whether in the form of a defendant’s testimony or other corroborative evidence. Once this defense has evidence to support it, the burden shifts to the State to disprove consent to the alleged theft by the owner of the property. 

In D.R. v. State, 734 So.2d 455 (1st DCA 1999), a case surrounding charges of burglary of a dwelling and theft, the court wrote:

“D.R. had the burden initially to offer evidence to establish the consent defense, and he did so. D.R. testified that he understood that he still had Brandon’s permission to enter the residence to retrieve his clothing, which Brandon knew was still inside. Hansman and Coleman support D.R.’s claim that after he met his burden, the burden shifted to the State to disprove the defense beyond a reasonable doubt.”  D.R. v. State, 734 So.2d at 460

Even if the defendant does not testify or offer any evidence of consent, prosecutors must still present some evidence of a lack of consent to the theft in order to overcome this defense if it is used. McCoy v. State, 723 So.2d 869 (1st DCA 1998).

Additionally, entrapment can be used as a defense to theft charges of any kind. If law enforcement induces an individual to act illegally, that person can argue that they were entrapped under Florida Statutes 777.201 and thus should not be convicted of the offense with which they have been charged. As the Supreme Court wrote in Jacobson:

“Law enforcement officials go too far when they ‘implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’ … When the Government’s quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene.” Jacobson v. United States, 503 U.S. 540 (1992).

An example of such entrapment can be found in Jones v. State, 483 So.2d 119 (2nd DCA 1985). In Jones, a police officer who pretended to be a homeless man had $150 sticking out of his pocket in plain view. An individual who removed the money from the officer’s pocket was charged with grand theft for doing so. However, the Jones court found that this was a clear case of entrapment under Florida law, writing: 

The record leaves no doubt that the state’s conduct was motivated by a purpose to intercept persons given to violence who would commit strong armed robberies, not to capture persons who would non-violently steal from or ‘roll’ a ‘drunken bum.’ … The absence of a prior criminal history and criminal activity by Jones before taking the decoy’s money sustains the conclusion that Jones merely ‘succumbed to temptation.’ Indeed, the decoy simply provided the opportunity for anyone to commit a crime who might be tempted by the bait to commit a crime.”  Jones v. State, 483 So.2d 119 (2nd DCA 1985)

The Jones case was a case of both “objective” and “subjective” entrapment. The court found the defendant was “objectively” entrapped by inappropriate police conduct designed to ensnare an individual who wouldn’t necessarily be predisposed to commit a crime. It also found that the defendant himself otherwise showed no predisposition to commit – and had no criminal history of – theft. The fact that the defendant only did so due to action by the State meant that he was “subjectively” entrapped.

I have been qualified, accepted as an expert, and testified as an expert in the area of Criminal Defense Trial Work (State v. David Lee Green, Case No: 00-CF-016798, Hillsborough County, January 5th, 2011, Tampa, Florida; Honorable Susan Lee Sexton, Circuit Judge). The specific area in which I testified in that case was entrapment.

If you are being charged with a theft offense, do not give up hope. These defenses, in addition to defenses like duress or involuntary intoxication, may be available defending on the facts of your case. Don Pumphrey, Jr. is an experienced and aggressive criminal defense attorney with almost 25 years of experience fighting tirelessly for clients in Florida. 

Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for almost 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. has been qualified, accepted as an expert, and testified as an expert in the area of Criminal Defense Trial Work in Florida (State v. David Lee Green, Case No: 00-CF-016798, Hillsborough County, January 5th, 2011, Tampa, Florida; Honorable Susan Lee Sexton, Circuit Judge). 

Find a Criminal Defense Lawyer in Tallahassee, FL

As a former prosecutor, former state police officer and a life member of the Florida Association of Criminal Defense Lawyers, Don Pumphrey Jr. has observed that being arrested anywhere in Florida can be extremely stressful. Being charged and “formally charged” by information in Tallahassee or Leon County, Wakulla County, Jefferson County, Gadsden County, Quincy, Crawfordville, Florida State University, Florida State University Campus, Florida State University Student Code of Conduct, Tallahassee Community College, Florida A&M University, or facing first appearance in Leon County, can be life changing. Given the possibility of a lengthy jail or in some cases lengthy prison sentence and hefty financial penalties, it is important to contact an aggressive, trusted and experienced Tallahassee criminal defense attorney as soon as possible.

Don Pumphrey, Jr. and the attorneys at Pumphrey Law have decades of experience fighting on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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