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Crimes Against Property
Criminal Defense
Civil Theft
772.11. Civil remedy for theft
Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037 has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft by the person making the written demand. Any person who has a cause of action under this section may recover the damages allowed under this section from the parents or legal guardian of any unemancipated minor who lives with his or her parents or legal guardian and who is liable for damages under this section. In no event shall punitive damages be awarded under this section. The defendant shall be entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim which was without substantial fact or legal support. In awarding attorney’s fees and costs under this section, the court shall not consider the ability of the opposing party to pay such fees and costs. Nothing under this section shall be interpreted as limiting any right to recover attorney’s fees or costs provided under other provisions of law.
772.17. Limitation of actions
Notwithstanding any other provision of law, a civil action or proceeding under this chapter may be commenced at any time within 5 years after the conduct in violation of a provision of this act terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought or intervened in by the state or by the United States to punish, prevent, or restrain any criminal activity or criminal conduct which forms the basis for a civil action under this chapter, the running of the period of limitations prescribed by this section shall be suspended during the pendency of such prosecution, action, or proceeding and for 2 years following its termination.
Credit Card Fraud & Identity Theft
817.61. Fraudulent use of credit cards
A person who, with intent to defraud the issuer or a person or organization providing money, goods, services, or anything else of value or any other person, uses, for the purpose of obtaining money, goods, services, or anything else of value, a credit card obtained or retained in violation of this part or a credit card which he or she knows is forged, or who obtains money, goods, services, or anything else of value by representing, without the consent of the cardholder, that he or she is the holder of a specified card or by representing that he or she is the holder of a card and such card has not in fact been issued violates this section. A person who, in any 6-month period, uses a credit card in violation of this section two or fewer times, or obtains money, goods, services, or anything else in violation of this section the value of which is less than $100, is subject to the penalties set forth in s. 817.67(1). A person who, in any 6-month period, uses a credit card in violation of this section more than two times, or obtains money, goods, services, or anything else in violation of this section the value of which is $100 or more, is subject to the penalties set forth in s. 817.67(2).
817.67. Penalties
(1) A person who is subject to the penalties of this subsection shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) A person who is subject to the penalties of this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
<General Materials (GM) – References, Annotations, or Tables>
817.568. Criminal use of personal identification information
(1) As used in this section, the term:
(a) “Access device” means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.
(b) “Authorization” means empowerment, permission, or competence to act.
© “Harass” means to engage in conduct directed at a specific person that is intended to cause substantial emotional distress to such person and serves no legitimate purpose. “Harass” does not mean to use personal identification information for accepted commercial purposes. The term does not include constitutionally protected conduct such as organized protests or the use of personal identification information for accepted commercial purposes.
(d) “Individual” means a single human being and does not mean a firm, association of individuals, corporation, partnership, joint venture, sole proprietorship, or any other entity.
(e) “Person” means a “person” as defined in s. 1.01(3).
(f) “Personal identification information” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any:
1. Name, social security number, date of birth, official state-issued or United States-issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number, Medicaid or food stamp account number, or bank account or credit card number;
2. Unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;
3. Unique electronic identification number, address, or routing code; or
4. Telecommunication identifying information or access device.
(2)(a) Any person who willfully and without authorization fraudulently uses, or possesses with intent to fraudulently use, personal identification information concerning an individual without first obtaining that individual’s consent, commits the offense of fraudulent use of personal identification information, which is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Any person who willfully and without authorization fraudulently uses personal identification information concerning an individual without first obtaining that individual’s consent commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $5,000 or more or if the person fraudulently uses the personal identification information of 10 or more individuals without their consent. Notwithstanding any other provision of law, the court shall sentence any person convicted of committing the offense described in this paragraph to a mandatory minimum sentence of 3 years’ imprisonment.
© Any person who willfully and without authorization fraudulently uses personal identification information concerning an individual without first obtaining that individual’s consent commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $50,000 or more or if the person fraudulently uses the personal identification information of 20 or more individuals without their consent. Notwithstanding any other provision of law, the court shall sentence any person convicted of committing the offense described in this paragraph:
1. To a mandatory minimum sentence of 5 years’ imprisonment.
2. To a mandatory minimum sentence of 10 years’ imprisonment, if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $100,000 or more or if the person fraudulently uses the personal identification information of 30 or more individuals without their consent.
(3) Neither paragraph (2)(b) nor paragraph (2)(c) prevents a court from imposing a greater sentence of incarceration as authorized by law. If the minimum mandatory terms of imprisonment imposed under paragraph (2)(b) or paragraph (2)(c) exceed the maximum sentences authorized under s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment under paragraph (2)(b) or paragraph (2)(c) are less than the sentence that could be imposed under s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, the sentence imposed by the court must include the mandatory minimum term of imprisonment as required by paragraph (2)(b) or paragraph (2)(c).
(4) Any person who willfully and without authorization possesses, uses, or attempts to use personal identification information concerning an individual without first obtaining that individual’s consent, and who does so for the purpose of harassing that individual, commits the offense of harassment by use of personal identification information, which is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(5) If an offense prohibited under this section was facilitated or furthered by the use of a public record, as defined in s. 119.011, the offense is reclassified to the next higher degree as follows:
(a) A misdemeanor of the first degree is reclassified as a felony of the third degree.
(b) A felony of the third degree is reclassified as a felony of the second degree
(c) A felony of the second degree is reclassified as a felony of the first degree.
For purposes of sentencing under chapter 921 and incentive gain-time eligibility under chapter 944, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 of the felony offense committed, and a misdemeanor offense that is reclassified under this subsection is ranked in level 2 of the offense severity ranking chart in s. 921.0022.
(6) Any person who willfully and without authorization fraudulently uses personal identification information concerning an individual who is less than 18 years of age without first obtaining the consent of that individual or of his or her legal guardian commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(7) Any person who is in the relationship of parent or legal guardian, or who otherwise exercises custodial authority over an individual who is less than 18 years of age, who willfully and fraudulently uses personal identification information of that individual commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(8) This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of this state or any of its political subdivisions, of any other state or its political subdivisions, or of the Federal Government or its political subdivisions.
(9)(a) In sentencing a defendant convicted of an offense under this section, the court may order that the defendant make restitution pursuant to s. 775.089 to any victim of the offense. In addition to the victim’s out-of-pocket costs, such restitution may include payment of any other costs, including attorney’s fees incurred by the victim in clearing the victim’s credit history or credit rating, or any costs incurred in connection with any civil or administrative proceeding to satisfy any debt, lien, or other obligation of the victim arising as the result of the actions of the defendant.
(b) The sentencing court may issue such orders as are necessary to correct any public record that contains false information given in violation of this section.
(10) Prosecutions for violations of this section may be brought on behalf of the state by any state attorney or by the statewide prosecutor.
(11) The Legislature finds that, in the absence of evidence to the contrary, the location where a victim gives or fails to give consent to the use of personal identification information is the county where the victim generally resides.
(12) Notwithstanding any other provision of law, venue for the prosecution and trial of violations of this section may be commenced and maintained in any county in which an element of the offense occurred, including the county where the victim generally resides.
(13) A prosecution of an offense prohibited under subsection (2), subsection (6), or subsection (7) must be commenced within 3 years after the offense occurred. However, a prosecution may be commenced within 1 year after discovery of the offense by an aggrieved party, or by a person who has a legal duty to represent the aggrieved party and who is not a party to the offense, if such prosecution is commenced within 5 years after the violation occurred.
Bad (Worthless) Checks
A bad check of $150.00 or more is a felony. Stopping payment on a check is only a crime if it was stopped with the intent to defraud someone. It is a defense to this charge if the check was post-dated.
832.041. Stopping payment with intent to defraud
(1) Whoever, with intent to defraud any person shall, in person or by agent, make, draw, utter, deliver, or give any check, draft, or written order for the payment of money upon any bank, person, or corporation and secure from such person goods or services for or on account of such check, draft, or written order, whether such goods or services are valued at the amount of such check, draft, or written order or at a greater or lesser value, and who shall, pursuant to and in furtherance of such intent to defraud, stop payment on such check, draft, or written order, shall be deemed to be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the value of the goods or services secured for or on account of such check, draft, or written order is $150 or more; and if the value of the goods or services secured for or on account of such check, draft, or written order is less than $150, he shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(2) This section shall be taken to be cumulative and shall not be construed to repeal any other statute now in effect.
832.05. Giving worthless checks, drafts, and debit card orders; penalty; duty of drawee; evidence; costs; complaint form
(1) Purpose.—The purpose of this section is to remedy the evil of giving checks, drafts, bills of exchange, debit card orders, and other orders on banks without first providing funds in or credit with the depositories on which the same are made or drawn to pay and satisfy the same, which tends to create the circulation of worthless checks, drafts, bills of exchange, debit card orders, and other orders on banks, bad banking, check kiting, and a mischief to trade and commerce.
(2) Worthless checks, drafts, or debit card orders; penalty.—
(a) It is unlawful for any person, firm, or corporation to draw, make, utter, issue, or deliver to another any check, draft, or other written order on any bank or depository, or to use a debit card, for the payment of money or its equivalent, knowing at the time of the drawing, making, uttering, issuing, or delivering such check or draft, or at the time of using such debit card, that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same on presentation; except that this section does not apply to any check when the payee or holder knows or has been expressly notified prior to the drawing or uttering of the check, or has reason to believe, that the drawer did not have on deposit or to his credit with the drawee sufficient funds to ensure payment as aforesaid, nor does this section apply to any postdated check.
(b) A violation of the provisions of this subsection constitutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, unless the check, draft, debit card order, or other written order drawn, made, uttered, issued, or delivered is in the amount of $150, or its equivalent, or more and the payee or a subsequent holder thereof receives something of value herefore. In that event, the violation constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) Cashing or depositing item with intent to defraud; penalty.—
(a) It is unlawful for any person, by act or common scheme, to cash or deposit any item, as defined in s. 674.104(1)(i), in any bank or depository with intent to defraud.
(b) A violation of the provisions of this subsection constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) Obtaining property or services in return for worthless checks, drafts, or debit card orders; penalty.—
(a) It is unlawful for any person, firm, or corporation to obtain any services, goods, wares, or other things of value by means of a check, draft, or other written order upon any bank, person, firm, or corporation, knowing at the time of the making, drawing, uttering, issuing, or delivering of such check or draft that the maker thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon presentation. However, no crime may be charged in respect to the giving of any such check or draft or other written order when the payee knows, has been expressly notified, or has reason to believe that the drawer did not have on deposit or to his credit with the drawee sufficient funds to ensure payment thereof. A payee does not have reason to believe a payor does not have sufficient funds to ensure payment of a check solely because the payor has previously issued a worthless check to him.
(b) It is unlawful for any person to use a debit card to obtain money, goods, services, or anything else of value knowing at the time of such use that he does not have sufficient funds on deposit with which to pay for the same or that the value thereof exceeds the amount of credit which is available to him through an overdraft financing agreement or prearranged line of credit which is accessible by the use of the card.
© A violation of the provisions of this subsection, if the check, draft, other written order, or debit card order is for an amount less than $150 or its equivalent, constitutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A violation of the provisions of this subsection, if the check, draft, other written order, or debit card order is in the amount of $150, or its equivalent, or more, constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) Payment no defense.—Payment of a dishonored check, draft, bill of exchange, or other order does not constitute a defense or ground for dismissal of charges brought under this section.
(6) “Credit,” “debit card” defined.—
(a) The word “credit” as used herein shall be construed to mean an arrangement or understanding with the drawee for the payment of such check, draft, or other written order.
(b) As used in this section, the term “debit card” means a card, code, or other device, other than a check, draft, or similar paper instrument, by the use of which a person may order, instruct, or authorize a financial institution to debit a demand deposit, savings deposit, or other asset account.
(7) Reason for dishonor, duty of drawee.—It is the duty of the drawee of any check, draft, or other written order, before refusing to pay the same to the holder thereof upon presentation, to cause to be written, printed, or stamped in plain language thereon or attached thereto the reason for the drawee’s dishonor or refusal to pay it. In any prosecution under this section, the introduction in evidence of any unpaid and dishonored check, draft, or other written order having the drawee’s refusal to pay stamped or written thereon or attached thereto, with the reason herefore as aforesaid, is prima facie evidence of the making or uttering of such check, draft, or other written order, of the due presentation to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reasons written, stamped, or attached by the drawee on such dishonored check, draft, or other written order. As against the maker or drawer thereof, the withdrawing from deposit with the drawee named in the check, draft, or other written order of the funds on deposit with such drawee necessary to ensure payment of such check, draft, or other written order upon presentation within a reasonable time after negotiation or the drawing, making, uttering, or delivering of a check, draft, or written order, payment of which is refused by the drawee, is prima facie evidence of knowledge of insufficient funds in or credit with such drawee. However, if it is determined at the trial in a prosecution hereunder that the payee of any such check, draft, or written order, at the time of accepting such check, draft, or written order, had knowledge of or reason to believe that the drawer of such check, draft, or other written order did not have sufficient funds on deposit in or credit with such drawee, then the payee instituting such criminal prosecution shall be assessed all costs of court incurred in connection with such prosecution.
(8) Costs.—When a prosecution is initiated under this section before any committing magistrate, the party applying for the warrant shall be held liable for costs accruing in the event the case is dismissed for want of prosecution. No costs shall be charged to the county in such dismissed cases.
(9) State attorneys; worthless checks; form of complaint.—The state attorneys of Florida shall collectively promulgate a single form to be used in all judicial circuits by persons reporting a violation of this chapter.
832.07. Prima facie evidence of intent; identity
(1) Intent.—
(a) In any prosecution or action under this chapter, the making, drawing, uttering, or delivery of a check, draft, or order, payment of which is refused by the drawee because of lack of funds or credit, shall be prima facie evidence of intent to defraud or knowledge of insufficient funds in, or credit with, such bank, banking institution, trust company, or other depository, unless such maker or drawer, or someone for him, shall have paid the holder thereof the amount due thereon, together with a service charge not to exceed the service fees authorized under s. 832.08(5) or an amount of up to 5 percent of the face amount of the check, whichever is greater, within 7 days after receiving written notice that such check, draft, or order has not been paid to the holder thereof, and bank fees incurred by the holder. In the event of legal action for recovery, the maker or drawer may be additionally liable for court costs and reasonable attorney’s fees. Notice mailed by certified or registered mail, evidenced by return receipt, to the address printed on the check or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the maker or drawer, whether such notice shall be returned undelivered or not. The form of such notice shall be substantially as follows:”You are hereby notified that a check, numbered ___, in the face amount of $___, issued by you on ___(date)___, drawn upon ___(name of bank)___, and payable to ___, has been dishonored. Pursuant to Florida law, you have 7 days from receipt of this notice to tender payment of the full amount of such check plus a service charge of $25, if the face value does not exceed $50, $30, if the face value exceeds $50 but does not exceed $300, $40, if the face value exceeds $300, or an amount of up to 5 percent of the face amount of the check, whichever is greater, the total amount due being $___ and ___ cents. Unless this amount is paid in full within the time specified above, the holder of such check may turn over the dishonored check and all other available information relating to this incident to the state attorney for criminal prosecution. You may be additionally liable in a civil action for triple the amount of the check, but in no case less than $50, together with the amount of the check, a service charge, court costs, reasonable attorney fees, and incurred bank fees, as provided in s. 68.065.”Subsequent persons receiving a check, draft, or order from the original payee or a successor endorsee have the same rights that the original payee has against the maker of the instrument, provided such subsequent persons give notice in a substantially similar form to that provided above. Subsequent persons providing such notice shall be immune from civil liability for the giving of such notice and for proceeding under the forms of such notice, so long as the maker of the instrument has the same defenses against these subsequent persons as against the original payee. However, the remedies available under this section may be exercised only by one party in interest.
(b) When a check is drawn on a bank in which the maker or drawer has no account or a closed account, it shall be presumed that such check was issued with intent to defraud, and the notice requirement set forth in this section shall be waived.
(2) Identity.—
(a) In any prosecution or action under the provisions of this chapter, a check, draft, or order for which the information required in paragraph (b), paragraph (d), paragraph (e), or paragraph (f) is available at the time of issuance constitutes prima facie evidence of the identity of the person issuing the check, draft, or order and that such person is authorized to draw upon the named account.
(b) To establish this prima facie evidence:
1. The driver’s license number or state identification number, specifying the state of issuance of the person presenting the check must be written on the check; or
2. The following information regarding the identity of the person presenting the check must be obtained by the person accepting such check: The presenter’s full name, residence address, home phone number, business phone number, place of employment, sex, date of birth, height and race. This information shall be written upon the check.
© The information required in subparagraph (b)2. May be provided by either of two methods:
1. The information may be recorded on the check; or
2. The number of a check-cashing identification card issued by the accepter of the check may be recorded on the check. In order to be used to establish identity, such check-cashing identification card may not be issued until the information required in subparagraph (b)2. Has been placed on file with the accepter of the check.
(d) If a check is received by a payee through the mail or by delivery to a representative of the payee, the prima facie evidence referred to in paragraph (a) may be established by presenting the original contract, order, or request for services that the check purports to pay for, bearing the signature of the person who signed the check, or by presenting a copy of the information required in subparagraph (b)2. Which is on file with the accepter of the check together with the signature of the person presenting the check.
(e) If a check is received by a payee and the drawer or maker has a check-cashing identification card on file with the payee, the prima facie evidence referred to in paragraph (a) may be established by presenting the signature found on the check-cashing identification card bearing the signature of the person who signed the check.
(f) If a check is received by the Department of Revenue through the mail or by delivery to a representative of the Department of Revenue, the prima facie evidence referred to in paragraph (a) may be established by presenting the original tax return, certificate, license, application for certificate or license, or other document relating to amounts owed by that person or taxpayer which the check purports to pay for, bearing the signature of the person who signed the check, or by presenting a copy of the information required in subparagraph (b)2. Which is on file with the accepter of the check together with the signature of the person presenting the check. The use of taxpayer information for purposes of establishing the identity of a person pursuant to this paragraph shall be considered a use of such information for official purposes.
832.08. State attorney bad check diversion program; fees for collections
(1) In any judicial circuit where a bad check diversion program is not in existence as of October 1, 1986, the state attorney may establish such a program, either within his office or through an independent contractor, for the purpose of diverting from prosecution certain persons accused of a violation of s. 832.04, s. 832.041, s. 832.05, or s. 832.06. The use of such a diversion program shall not affect the authority of the state attorney to prosecute any person for any such violation.
(2) Upon receipt of a complaint alleging any such violation, the state attorney shall determine if the case is appropriate for referral to the bad check diversion program by considering:
(a) The amount of the bad check.
(b) The prior criminal record of the defendant.
© Whether or not there are other bad check complaints currently pending against the defendant.
(d) The strength of the evidence of intent to defraud the victim.
(3) Upon referral of a complaint to the bad check diversion program, the state attorney shall forward a notice of the complaint by mail to the defendant. The notice shall contain all of the following:
(a) The date and amount of the check.
(b) The name of the payee.
© The date before which the defendant must contact the bad check office concerning the complaint.
(d) A statement of the penalty for issuance of a bad check.
(4) If the state attorney allows the defendant to enter into a diversion program, the state attorney shall enter into a written agreement with the defendant to divert him on bad check charges. The diversion agreement shall include all of the following conditions, which must be accepted by the defendant:
(a) Attendance at a program designed to assist and educate persons who have violated the provisions of this chapter.
(b) Full restitution on the check.
© Full payment of fees due under subsection (5).
(d) Any individual who does not fulfill the agreements for diversion could then be prosecuted under the appropriate section.
(e) A knowing and intelligent waiver of his right to a speedy trial for the period of his diversion.
(5) To fund the diversion program, the state attorney may collect a fee on each check that is collected through his office, whether it is collected through prosecution or through the diversion program. However, the state attorney may not collect such a fee on any check collected through a diversion program which was in existence in another office prior to October 1, 1986. A fee may be collected by an office operating such a preexisting diversion program for the purpose of funding such program. The amount of the fee for each check shall not exceed:
(a) Twenty-five dollars, if the face value does not exceed $50.
(b) Thirty dollars, if the face value is more than $50 but does not exceed $300.
(c) Forty dollars, if the face value is more than $300.
Burglary
It is a Burglary to do the following:
REMOVING WHEELS AND TIRES OF CAR, State v. Word, 711 So.2d 1240(Fla. 2nd DCA 1998)
TAKING PROPERTY FROM OPEN BED OF PICK-UP TRUCK, Braswell v. State, 671 So.2d 228(Fla. 1st DCA 1996)
LIFTING RADIATOR FROM ENGINE COMPARTMENT, Anderson v. State, 415 So.2d 829(Fla. 3rd DCA 1982)
TAKING STARTER FROM ENGINE COMPARTMENT, State v. Harvey, 403 So.2d 630(Fla. 2nd DCA 1981)
TOOK BATTERY FROM HOOD OF CAR, Bragg v. State, 371 So.2d 1082(Fla. 4th DCA 1979)
It is not a burglary to do the following:
SIPHONING GAS FROM CAR, R.E.S. v. State, 386 So.2d 1219(Fla. 1st DCA 1981)
STEALING HUBCAPS, Drew v. State, 773 So.2d 46 (Fla. 2000)
Below are the Jury Instructions for burglary crimes.
13.1 BURGLARY
§ 810.02, Fla. Stat.
Give if the information charges entering with the intent to commit an offense:
To prove the crime of Burglary, the State must prove the following [two] [three] elements beyond a reasonable doubt:
1. (Defendant) entered a [structure] [conveyance] owned by or in the possession of (person alleged).
2. At the time of entering the [structure] [conveyance], (defendant) had the intent to commit [an offense] [(the crime alleged)] in that [structure] [conveyance].
The offense intended cannot be trespass or burglary.
Give element 3 only if defendant meets his or her burden of production that he or she had an invitation or license to enter, or that the premises were open to the public. See State v. Hicks, 421 So. 2d 510 (Fla. 1982), and State v. Waters, 436 So. 2d 66 (Fla. 1983).
3. [(Defendant) was not [licensed] [invited] to enter the [structure] [conveyance].] [The premises were not open to the public at the time of the entering.]
Give if applicable.
If the [license] [invitation] to enter was obtained by (defendant’s) trick or fraud or deceit, then the [license] [invitation] to enter was not valid.
Give if applicable.
If (defendant) entered premises that were open to the public, but then entered an area of the premises that [he] [she] knew was not open to the public, (defendant) committed a burglary if [he] [she] entered that non-public area with the intent to commit [an offense] [(the crime alleged)] in that non-public area.
Give if applicable. § 810.07 Fla. Stat.
You may infer that (defendant) had the intent to commit a crime inside a [structure] [conveyance] if the [entering] [attempted entering] of the [structure] [conveyance] was done stealthily and without the consent of the owner or occupant.
Give if applicable.
The entry necessary need not be the whole body of the defendant. It is sufficient if the defendant, with the intent to commit a crime, extends any part of [his] [her] body into the [structure] [conveyance].
Give if the information charges remaining with the intent to commit an offense:
To prove the crime of Burglary, the State must prove the following two elements beyond a reasonable doubt:
1. (Defendant) had permission or consent to enter a [structure] [conveyance] owned by or in the possession of (person alleged).
2. (Defendant), after entering the [structure] [conveyance], remained therein
Give 2a, 2b, or 2c as applicable.
a. surreptitiously and with the intent to commit [an offense] [(the crime alleged)] inside the [structure] [conveyance].
b. after permission to remain had been withdrawn and with the intent to commit [an offense] [(the crime alleged)] inside the [structure] [conveyance].
c. with the intent to commit or attempt to commit a [forcible felony] [(the forcible felony alleged)] inside the [structure] [conveyance].
The offense intended cannot be trespass or burglary. Forcible felonies are listed in § 776.08 Fla. Stat.
Proof of intent.
The intent with which an act is done is an operation of the mind and, therefore, is not always capable of direct and positive proof. It may be established by circumstantial evidence like any other fact in a case.
Even though an unlawful [entering] [remaining in] a [structure] [conveyance] is proved, if the evidence does not establish that it was done with the intent to commit [an offense] [(the crime alleged)], the defendant must be found not guilty of burglary.
Proof of possession of stolen property.
Proof of possession by an accused of property recently stolen by means of a burglary, unless satisfactorily explained, may justify a conviction of burglary if the circumstances of the burglary and of the possession of the stolen property convince you beyond a reasonable doubt that the defendant committed the burglary.
Definitions; give as applicable.
§ 810.011(1), Fla. Stat.
“Structure” means any building of any kind, either temporary or permanent, that has a roof over it, and the enclosed space of ground and outbuildings immediately surrounding that structure.
§ 810.011(3), Fla. Stat.
“Conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft or sleeping car; and to enter a conveyance includes taking apart any portion of the conveyance.
With an assault.
If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) assaulted any person. An assault is an intentional and unlawful threat, either by word or act, to do violence to another, at a time when the defendant appeared to have the ability to carry out the threat and [his] [her] act created a well-founded fear in the other person that the violence was about to take place.
With a battery.
If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) battered any person. A battery is an actual and intentional touching or striking of another person against that person’s will or the intentional causing of bodily harm to another person.
While armed.
If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) was armed or armed [himself] [herself] within the [structure] [conveyance] with [explosives] [a dangerous weapon].
Definitions. Give as applicable. § 790.001(5), Fla. Stat. See exceptions in § 790.001(5)(a)-(d), Fla. Stat.
“Explosive” means any chemical compound or mixture that has the property of yielding readily to combustion or oxidation upon application of heat, flame, or shock, including but not limited to dynamite, nitroglycerin, trinitrotoluene, or ammonium nitrate when combined with other ingredients to form an explosive mixture, blasting caps, and detonators.
A “dangerous weapon” is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm. It is not necessary for the State to prove that the defendant intended to use or was willing to use the weapon in furtherance of the burglary in order for a weapon to constitute a “dangerous weapon.”
To “arm” oneself during the course of a burglary includes possessing a firearm, whether loaded with ammunition or not, at any time during the course of committing the burglary.
Structure or conveyance is a dwelling.
If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether the [structure] [conveyance] [entered] [remained in] was a dwelling.
Definition. Give as applicable.
“Dwelling” means a building [or conveyance] of any kind, whether such building [or conveyance] is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the enclosed space of ground and outbuildings immediately surrounding it. For purposes of burglary, a “dwelling” includes an attached porch or attached garage.
Human being in structure or conveyance.
If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, there was another human being in the [structure] [conveyance], at the time [he] [she] [entered] [remained in] the [structure] [conveyance].
Dwelling or structure with use of motor vehicle or damage.
If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) entered a [dwelling] [structure] and
1. used a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense, and thereby damaged the [dwelling] [structure].
or
2. caused damage to the [dwelling] [structure] [property within the [dwelling] [structure]], in excess of $1,000.
Authorized emergency vehicle.
If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether the conveyance [entered] [remained in] was an authorized emergency vehicle.
Definition. See § 316.003, Fla. Stat.
An “authorized emergency vehicle” is [a vehicle of the fire department (fire patrol) or police] [an ambulance or emergency vehicle of [municipal departments] [public service corporations operated by private corporations] [the Department of Environmental Protection, Health, or Transportation] [Department of Corrections]] that is designated or authorized by the respective department, chief of police of an incorporated city, or sheriff of a county.
State of emergency.
The definitions of structure, dwelling, and conveyance are different for counties where a state of emergency has been declared under chapter 252. See § 810.011(1), (2), and (3), Fla. Stat.
If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether
1. the burglary was committed within a county that was subject to a state of emergency that had been declared by the governor under chapter 252, the “State Emergency Management Act,”
and
2. the perpetration of the burglary was facilitated by conditions arising from the emergency.
Definition.
The term “conditions arising from the emergency” means civil
unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel.
§ 810.011(4), Fla. Stat.
An act is committed “in the course of committing” if it occurs in the attempt to commit the offense or in flight after the attempt or commission.
ion.
Thefts
812.019 Dealing in stolen property
(1) Any person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree, punishable as provided in ss. 775.082, 775.083, and 775.084. “Traffic” is defined under section 812.012(7), Florida Statutes (1989), as:(a) To sell, transfer, distribute, dispense, or otherwise dispose of property. (b) To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.
812.014. Theft
(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
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. 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; or
3. 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,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(10) or to treat medical emergencies.
(c) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is:
1. Valued at $300 or more, but less than $5,000.
2. Valued at $5,000 or more, but less than $10,000.
3. Valued at $10,000 or more, but less than $20,000.
4. A will, codicil, or other testamentary instrument.
5. A firearm.
6. A motor vehicle, except as provided in paragraph (2)(a).
7. Any commercially farmed animal, including any animal of the equine, bovine, or swine class, or other grazing animal, and including aquaculture species raised at a certified aquaculture facility. If the property stolen is aquaculture species raised at a certified aquaculture facility, then a $10,000 fine shall be imposed.
8. Any fire extinguisher.
9. Any amount of citrus fruit consisting of 2,000 or more individual pieces of fruit.10. Taken from a designated construction site identified by the posting of a sign as provided for in s. 810.09(2)(d).
11. Any stop sign.
12. Anhydrous ammonia.
(d) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is valued at $100 or more, but less than $300, and is taken from a dwelling as defined in s. 810.011(2) or from the unenclosed curtilage of a dwelling pursuant to s. 810.09(1).
(e) Except as provided in paragraph (d), if the property stolen is valued at $100 or more, but less than $300, the offender commits petit theft of the first degree, punishable as a misdemeanor of the first degree, as provided in s. 775.082 or s. 775.083.
(3)(a) Theft of any property not specified in subsection (2) is petit theft of the second degree and a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, and as provided in subsection (5), as applicable.
(b) A person who commits petit theft and who has previously been convicted of any theft commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) A person who commits petit theft and who has previously been convicted two or more times of any theft commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
(d)1. Every judgment of guilty or not guilty of a petit theft shall be in writing, signed by the judge, and recorded by the clerk of the circuit court. The judge shall cause to be affixed to every such written judgment of guilty of petit theft, in open court and in the presence of such judge, the fingerprints of the defendant against whom such judgment is rendered. Such fingerprints shall be affixed beneath the judge’s signature to such judgment. Beneath such fingerprints shall be appended a certificate to the following effect:
“I hereby certify that the above and foregoing fingerprints on this judgment are the fingerprints of the defendant, ____, and that they were placed thereon by said defendant in my presence, in open court, this the ____ day of ____, (year).”
Such certificate shall be signed by the judge, whose signature thereto shall be followed by the word “Judge.”
2. Any such written judgment of guilty of a petit theft, or a certified copy thereof, is admissible in evidence in the courts of this state as prima facie evidence that the fingerprints appearing thereon and certified by the judge are the fingerprints of the defendant against whom such judgment of guilty of a petit theft was rendered.
(4) Failure to comply with the terms of a lease when the lease is for a term of 1 year or longer shall not constitute a violation of this section unless demand for the return of the property leased has been made in writing and the lessee has failed to return the property within 7 days of his or her receipt of the demand for return of the property. A demand mailed by certified or registered mail, evidenced by return receipt, to the last known address of the lessee shall be deemed sufficient and equivalent to the demand having been received by the lessee, whether such demand shall be returned undelivered or not.
(5)(a) No person shall drive a motor vehicle so as to cause it to leave the premises of an establishment at which gasoline offered for retail sale was dispensed into the fuel tank of such motor vehicle unless the payment of authorized charge for the gasoline dispensed has been made.
(b) In addition to the penalties prescribed in paragraph (3)(a), every judgment of guilty of a petit theft for property described in this subsection shall provide for the suspension of the convicted person’s driver’s license. The court shall forward the driver’s license to the Department of Highway Safety and Motor Vehicles in accordance with s. 322.25.
1. The first suspension of a driver’s license under this subsection shall be for a period of up to 6 months.
2. The second or subsequent suspension of a driver’s license under this subsection shall be for a period of 1 year.