Burglaries
Burglary of a Conveyance/Structure
Burglary is defined as “the unlawful entry into the property of another with an intent to commit a crime therein”. In other words, a person commits a burglary when (s)he enters a home, car, or structure (for example, a store, shed, or some other building that is not someone’s home) without permission AND did so in order to commit some other crime. The typical scenario would be a person entering the home or property of another with the intent to steal some property inside (a theft). Burglary of a Conveyance (example: vehicle) and Burglary of a Structure (example: shed) are both third-degree felonies, punishable by up to five years in prison, five years of probation, and a $5,000 fine.
Burglary of a Dwelling
In contrast, a Burglary of a Dwelling - the most serious category of burglary crimes - involves the same elements (entry without permission and intent to commit a crime inside) into someone’s home. This is a second-degree felony, punishable by up to 15 years in prison, 15 years of probation, and a $10,000 fine. This charge is particularly serious because of its categorization as a “Level-7” offense. The “level” of an offense becomes relevant when looking at a scoresheet, which determines minimum sentencing guidelines. In the case of a Level 7 offense, a person with no prior criminal history would score enough to require a minimum prison sentence of 21 months.
Sentence Enhancements
In addition to the serious penalties that come with burglary charges, in special circumstances, there could be “enhancements” that drastically increase the possible penalties. For instance, if a person commits an assault or battery during a burglary, the burglary then becomes a first-degree felony punishable by life imprisonment. Similarly, a person who commits a burglary of a dwelling while armed -or who becomes armed during the burglary (ex: takes a firearm from the home during the burglary), commits a first-degree felony punishable by life imprisonment. Additionally, a person charged with armed burglary may face a ten-year minimum mandatory prison sentence under Florida’s 10-20-Life statute. Also, a person that wears a mask, or any other object, to conceal their identity during the commission of a burglary may face a sentence enhancement (ex: a second-degree felony becomes a first-degree felony), which can increase maximum penalties.
Types of Evidence
Burglaries, especially home burglaries, often involve detailed investigations by property crime detectives. Typically, a suspect is not caught in the act and a suspect may be identified through the following common types of evidence:
Fingerprint and/or DNA evidence - Detectives may focus on potential exit or entry points of the home, as well as any areas where it is apparent the suspect touched or removed objects. Additionally, any blood/bodily fluids and hairs could be collected for forensic analysis.
Possession of Recently Stolen Property – People are commonly identified as suspects in burglaries because they are later found in possession of property that was taken during the crime. This often happens when the suspect attempts to sell the property to second-hand dealer- generally a pawn shop- and it is identified as stolen. This is particularly true where stolen items are found or pawned by a suspect shortly after the burglary occurs (and often at a location not far from the scene of the burglary). Although there could be alternative explanations for possessing stolen property, the law allows a jury to convict a defendant of burglary if the State can show that they are in possession of recently-stolen property.
Electronic Tracking – Some stolen property, such as cell phones, i-pads, or laptops, can be tracked by technology that may ultimately lead law enforcement directly to a suspect’s location. Also, if credit cards are taken during a burglary and then used for purchases, law enforcement may also be able to track card activity in order to identify the suspect.
Co-Defendant Testimony – It is fairly common for burglaries to be committed by multiple people. Once the police identify one suspect, they will likely interrogate them and convince them to identify the other participants.
(NOTE – If a Co-Defendant is testifying against you, it is important that your attorney is skilled and experienced in cross-examining Co-Defendant witnesses. It is crucial that the jury know the Co-Defendant’s involvement, the potential sentence he/she was facing, the sentence or expected sentence he/she will get in exchange for his/her testimony, as well as any other benefits or advantages he/she has received in exchange for their testimony. Generally, this information needs to be examined during a pre-trial deposition to properly prepare for its use at trial.)
Dealing in Stolen Property
Dealing in Stolen Property (DSP) is defined as trafficking in, or attempting to traffic in, property that he knows or should know was stolen. DSP is a second-degree felony punishable by up to 15 years in prison and/or 15 years of supervised probation. Generally, a person will be charged with DSP when the person sells property to a second-hand dealer, like a pawn shop, and the property is later identified by law enforcement as stolen property. As a result, DSP charges often accompany charges of burglary and theft.
Evidence
The key issue in DSP cases is often whether the State can prove that the Defendant knew (or should have known) that the property was stolen. Unless a defendant admits that he/she knew the property was stolen, the State usually relies on circumstantial evidence to prove this. There are several jury instructions relate to this inference, including:
Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.
Proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen.
Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that it had been stolen.
Proof that a dealer who regularly deals in used property possesses stolen property, upon which a name and phone number of a person other than the offer or of the property are conspicuously displayed, gives rise to an inference that the dealer possessing the property knew or should have known that the property was stolen.
It is important to note that while a criminal defendant does not have a burden to prove anything, and of course the a defendant can never be compelled to testify in a trial, the inference instructions often make it difficult for the defendant to succeed at trial if the defense is unable to provide a reasonable explanation as to why the defendant had the property.
Receiving Money from a Pawnbroker/False Verification
When a DSP charge involves selling the property to a second-hand dealer, the defendant will usually be charged with Receiving Money from a Pawnbroker by False Verification of Ownership as well. Approved pawn forms include a sworn statement from the seller that “the pledgor or seller of the item represents and warrants that it is not stolen, that it has no liens or encumbrances against it, and that the pledgor or seller is the rightful owner of the goods and has the right to enter into the transaction.” Where law enforcement finds that the property was stolen or otherwise not the rightful property of the seller, the above provision has been violated and forms the basis for this crime. Where the seller receives less than $300 in return for the property, False Verification is a third-degree felony punishable by up to 5 years in prison and/or 5 years of supervised probation. Where the seller receives $300 or more in return for the property, False Verification is a second-degree felony punishable by up to 15 years in prison and/or 15 years of supervised probation.
Theft
Theft is defined as “the taking of the property of another, without consent, with the intent to permanently or temporarily deprive one’s use of the property”. While this definition is pretty straightforward, it’s worth noting that theft does include “temporarily” depriving the owner of the use of the property. In other words, a person may be charged and ultimately convicted of theft if he uses another person’s property, even if they gave it back.
Theft is an enhanceable crime depending on the value of the property taken. Here are the most common levels of theft under Florida Law:
Property Less Than $100 = Petit Theft, Second-Degree Misdemeanor (Maximum Sixty Days in Jail/Six Months of Probation)
Property Equal or Greater Than $100 but Less Than $300 = Petit Theft, First-Degree Misdemeanor (Maximum One Year in Jail/One Year Probation)
Property Equal or Greater Than $100 but Less Than $300 and Taken from a Dwelling = Grand Theft, Third-Degree Felony (Maximum Five Years in Prison/Five Years of Probation)
Property Equal or Greater Than $300 but Less Than $20,000 = Grand Theft, Third-Degree Felony (Maximum Five Years in Prison/Five Years of Probation)
Property Greater Than $20,000 but Less Than $100,000 = Grand Theft, Second-Degree Felony (Maximum Fifteen Years in Prison/Fifteen Years of Probation)
Property Greater Than $100,000 = Grand Theft, First-Degree Felony (Maximum Thirty Years in Prison/Thirty Years of Probation)
Sentencing Enhancements
Petit Theft w/ Any Prior Theft Conviction = First-Degree Misdemeanor (Maximum One Year in Jail/One Year Probation)
Petit Theft w/ Two or More Prior Theft Convictions = Third-Degree Felony (Maximum Five Years in Prison/Five Years of Probation)
Criminal Mischief
Criminal mischief occurs when a person willfully and maliciously damages the property of another. Like theft, criminal mischief is an enhanceable offense and depends on the amount of property damage. The following categorizes the most common levels of criminal mischief under Florida Law:
Property Damage Less Than $200 = Second-Degree Misdemeanor (Maximum Sixty Days in Jail/Six Months of Probation)
Property Damage Equal or Greater Than $200 but Less Than $1,000 = First-Degree Misdemeanor (Maximum One Year in Jail/One Year Probation)
Property Damage Equal or Greater Than $1,000 = Third-Degree Felony (Maximum Five Years in Prison/Five Years of Probation)
Sentencing Enhancements
Criminal Mischief w/ Prior Criminal Mischief Conviction = Third-Degree Felony (Maximum Five Years in Prison/Five Years of Probation)
Proper representation in these cases requires knowledge, experience, and a thorough approach to your defense. There are many special laws, procedures, and of options available in these types of cases and it is important to hire an attorney with the specialized experience needed to achieve your desired results. Board Certified Criminal Trial Attorney Benjamin Wurtzel has handled all kinds of theft cases, from Petit Theft to complex Fraud cases. Mr. Wurtzel has been able to use his experience and legal knowledge to effectively defend clients facing these charges. If you or someone you know is facing these charges, call Wurtzel Law today for a free consultation to learn how we might be able to help.