General Theft & Larceny Charges in Florida

General Theft & Larceny Charges in Florida

By Stephen G. Cobb, Board Certified Criminal Trial Law Specialist


Generally, any type of theft, larceny or (to use a word no one ever uses in everyday conversation) purloining involves the 1) permanent or 2) temporary deprivation of property from the rightful owner. The first is commonly understood, however many believe the return property defeats the charge. However, there is no "gave it back" defense. The temporary deprivation of ownership rights is the same crime as when property rights are permanently deprived.

Defenses to Grand larceny, theft and fraud charges

There are two basic types of defenses under Florida law for the different types of theft, larceny and fraud crimes:

  1. Defenses made with legal pleadings (written documents with or without oral arguments) that are issues of law.
  2. Defenses which are issues of fact which are decide by the jury.

Let’s examine each.

Pretrial defenses begin with the filing of a written plea of Not Guilty and a Notice of Discovery. The goal is to determine the strength of both types of defenses in order to determine the best course of action. This takes several weeks and/or months due to Rules of procedure regarding when discovery materials are due under Florida procedural law.

Pretrial issues of law include but are not limited to: violations of defendant rights, statutory construction of legal time limitations on actions against a larceny, theft or fraud defendant, admissibility of evidence of a crime, and dismissal of criminal proceedings. One important note is that defense attorneys should also examine the dollar amount justifying degree of charge(s) if it is close to making a difference of the degree of the charge. There is a major difference between a grand larceny as a third degree felony and a grand larceny of the second: the former has a 5 year maximum and the latter a 15 year maximum. There is also a major difference between a grand larceny of the third degree and a misdemeanor theft offense.

Factual issues require a criminal jury or bench trial. A jury trial is more common. The judge rules on legal issues as they arise in a criminal trial and the jury determines facts unless the judge is also the trier of fact (a criminal bench trial).

The classic example of a fact issue is where there is a dispute of credibility. If the defense is a claim that the larceny, theft or fraud allegation is false, this is not an issue the judge can decide as an issue of Florida criminal or procedural law. This is solely determined as a fact or not by the trier of fact in a criminal trial. Another common defense subject to verdict at criminal trial is the SODDIT defense. This is criminal law attorney jargon for "Some Other Dude Did It".

Any type of fact defense in a larceny, theft or fraud case is a trial defense. The greatest danger with trials and especially jury trials is known as the trial penalty. If someone loses a jury trial, then they will almost certainly get the maximum sentence. In case law, punishing someone for exercising their right to a trial by jury is illegal and results in resentencing. In the real world, this almost never happens because the judge simply imposes the maximum sentence without saying anything on the record that will result in reversal or sentence reduction. They then proceed to go to Bar functions and encourage more jury trials.

Mitigation of larceny, theft and fraud charges in Florida state court proceedings

While there is no "gave it back" defense, the timely return of property or financial restitution can mitigate criminal charges. There have been cases where charges were eliminated before the filing of a charging document when this has been done correctly although this is rare.

However, this is dangerous if undertaken in the wrong manner. Whether a grand or misdemeanor type of larceny, the return of property wrongfully taken is fraught with magnified legal risk to the defendant as well as very specific ethical dos and don’ts. This is where a skilled legal professional can help navigate the minefield of Florida criminal law regarding larceny, fraud and theft cases. This must be carefully handled as part of any damage control legal strategy.