The question posed, “When Does a Theft Occur?” may seem to have an obvious answer; and in most situations, the answer is obvious. For example, if a person has been charged with stealing from a convenience store, the theft has occurred when that person took possession of the item without any intention of paying for the item. However, there are some circumstances where the answer is not so obvious and other situations where a theft hasn’t occurred at all.
The Florida theft statute is codified at Fla. Stat. §§ 810.012 -810.014. Florida law defines a theft as: knowingly obtaining or using, or endeavoring 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. Fla. Stat. § 810.014(1)(a). Florida law further ‘obtains or uses’ means any manner of: (a) Taking or exercising control over property; (b) Making any unauthorized use, disposition, or transfer of property; or (c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise. Fla. Stat. § 810.012(3)(a).
The portion of the statute that causes the most confusion for victims, law enforcement, prosecutors, and judges is where a theft has allegedly occurred by fraud, willful misrepresentation, or false promise. This type of case will typically arise after a homeowner or other purchases or goods or services has become dissatisfied with the work performed or goods purchased. The alleged victim will demand a return of the money spent and, once the money is not returned, report the incident to law enforcement as grand theft if over $300.00 is alleged taken.
Here’s where confusion sets in: case law and the statute requires that the intent to temporarily or permanently deprive the alleged victim of their money and / or property must have been present at the time the money or property was taken. In sum, it is not a crime for a contractor to perform substandard work or to fail to complete a job unless that was the contractor’s intent from the start.
Let’s take the example of Huggins v. State, 37 Fla. L. Weekly D2292b (Fla. 1st DCA 2012). In this case, Huggins was contracted to fix the alleged victim’s roof. Even though he was an unlicensed contractor, he agreed to perform the job, took money from the victim, purchased materials, and began working on the project. It was only after an inspector began looking into the project that Huggins ceased working on the project. In reversing the trial court, the appellate court stated, “Thus, as in Crawford [v. State, 453 So. 2d 1139, 1140-41 (Fla. 2d DCA 1984)]:, “’[a]lthougTh there may be a serious question as to whether his performance was adequate, this appears to be a civil rather than a criminal issue.’”
Thus, the answer to the question posed is relatively simple: A theft occurs at the time of the taking with an intent to temporarily or permanently deprive a person of property. What is perhaps more important is what is not a theft: such as failing to complete a hired-for job, failing to return money, and failing to adequately perform under a contract. The last three items listed are simply civil breaches of contract or other civil lawsuits which may subject the party in breach to damages, but not to criminal liability. See Segal v. State, 98 So.3d 1248 (Fla. 3d DCA 2012).
If you are a business owner or contractor that has been charged criminally for grand theft, please call us today at 813.902.3576 to speak to one of our experienced criminal defense lawyers during your free consultation.
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