Florida Senate - 2009                             CS for SB 1548
       
       
       
       By the Committee on Criminal Justice; and Senator Joyner
       
       
       
       
       591-03004-09                                          20091548c1
    1                        A bill to be entitled                      
    2         An act relating to theft; amending s. 812.014, F.S.;
    3         increasing the minimum amount of value attributed to
    4         certain emergency medical equipment and law
    5         enforcement equipment for the theft to reach the
    6         threshold for a second-degree felony; increasing the
    7         minimum value attributed to certain property for the
    8         theft to reach the threshold for a third-degree
    9         felony; authorizing a law enforcement officer who has
   10         probable cause to believe that a defendant has
   11         committed retail theft to issue a notice to appear in
   12         lieu of arresting the defendant under certain
   13         circumstances; authorizing a state attorney to
   14         establish a retail-theft diversion program for the
   15         purpose of diverting defendants from criminal
   16         prosecution if the defendant meets certain criteria;
   17         providing eligibility criteria for participating in a
   18         retail-theft diversion program; requiring the state
   19         attorney to mail a notice to appear to a defendant
   20         upon referral to a diversion program; setting forth
   21         the conditions that each participant in the retail
   22         theft diversion program must complete; providing that
   23         a defendant may be prosecuted for the retail theft if
   24         all conditions in the diversion program are not
   25         fulfilled; authorizing a state attorney to collect a
   26         fee from each participant in the program; setting a
   27         limit on the fee for each defendant; amending s.
   28         812.015, F.S.; increasing the value attributed to
   29         property taken during the commission of retail theft
   30         to reach the threshold amount for a third-degree
   31         felony offense; providing an effective date.
   32  
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Subsection (2) of section 812.014, Florida
   36  Statutes, is amended, and paragraphs (e) and (f) are added to
   37  subsection (3) of that section, to read:
   38         812.014 Theft.—
   39         (2)(a)1. If the property stolen is valued at $100,000 or
   40  more or is a semitrailer that was deployed by a law enforcement
   41  officer; or
   42         2. If the property stolen is cargo valued at $50,000 or
   43  more that has entered the stream of interstate or intrastate
   44  commerce from the shipper’s loading platform to the consignee’s
   45  receiving dock; or
   46         3. If the offender commits any grand theft and:
   47         a. In the course of committing the offense the offender
   48  uses a motor vehicle as an instrumentality, other than merely as
   49  a getaway vehicle, to assist in committing the offense and
   50  thereby damages the real property of another; or
   51         b. In the course of committing the offense the offender
   52  causes damage to the real or personal property of another in
   53  excess of $1,000,
   54  
   55  the offender commits grand theft in the first degree, punishable
   56  as a felony of the first degree, as provided in s. 775.082, s.
   57  775.083, or s. 775.084.
   58         (b)1. If the property stolen is valued at $20,000 or more,
   59  but less than $100,000;
   60         2. The property stolen is cargo valued at less than $50,000
   61  that has entered the stream of interstate or intrastate commerce
   62  from the shipper’s loading platform to the consignee’s receiving
   63  dock;
   64         3. The property stolen is emergency medical equipment,
   65  valued at $600 $300 or more, that is taken from a facility
   66  licensed under chapter 395 or from an aircraft or vehicle
   67  permitted under chapter 401; or
   68         4. The property stolen is law enforcement equipment, valued
   69  at $600 $300 or more, that is taken from an authorized emergency
   70  vehicle, as defined in s. 316.003,
   71  
   72  the offender commits grand theft in the second degree,
   73  punishable as a felony of the second degree, as provided in s.
   74  775.082, s. 775.083, or s. 775.084. Emergency medical equipment
   75  means mechanical or electronic apparatus used to provide
   76  emergency services and care as defined in s. 395.002(9) or to
   77  treat medical emergencies. Law enforcement equipment means any
   78  property, device, or apparatus used by any law enforcement
   79  officer as defined in s. 943.10 in the officer’s official
   80  business. However, if the property is stolen within a county
   81  that is subject to a state of emergency declared by the Governor
   82  under chapter 252, the theft is committed after the declaration
   83  of emergency is made, and the perpetration of the theft is
   84  facilitated by conditions arising from the emergency, the theft
   85  is a felony of the first degree, punishable as provided in s.
   86  775.082, s. 775.083, or s. 775.084. As used in this paragraph,
   87  the term “conditions arising from the emergency” means civil
   88  unrest, power outages, curfews, voluntary or mandatory
   89  evacuations, or a reduction in the presence of or response time
   90  for first responders or homeland security personnel. For
   91  purposes of sentencing under chapter 921, a felony offense that
   92  is reclassified under this paragraph is ranked one level above
   93  the ranking under s. 921.0022 or s. 921.0023 of the offense
   94  committed.
   95         (c) It is grand theft of the third degree and a felony of
   96  the third degree, punishable as provided in s. 775.082, s.
   97  775.083, or s. 775.084, if the property stolen is:
   98         1. Valued at $600 $300 or more, but less than $5,000.
   99         2. Valued at $5,000 or more, but less than $10,000.
  100         3. Valued at $10,000 or more, but less than $20,000.
  101         4. A will, codicil, or other testamentary instrument.
  102         5. A firearm.
  103         6. A motor vehicle, except as provided in paragraph (a).
  104         7. Any commercially farmed animal, including any animal of
  105  the equine, bovine, or swine class, or other grazing animal, and
  106  including aquaculture species raised at a certified aquaculture
  107  facility. If the property stolen is aquaculture species raised
  108  at a certified aquaculture facility, then a $10,000 fine shall
  109  be imposed.
  110         8. Any fire extinguisher.
  111         9. Any amount of citrus fruit consisting of 2,000 or more
  112  individual pieces of fruit.
  113         10. Taken from a designated construction site identified by
  114  the posting of a sign as provided for in s. 810.09(2)(d).
  115         11. Any stop sign.
  116         12. Anhydrous ammonia.
  117  
  118  However, if the property is stolen within a county that is
  119  subject to a state of emergency declared by the Governor under
  120  chapter 252, the property is stolen after the declaration of
  121  emergency is made, and the perpetration of the theft is
  122  facilitated by conditions arising from the emergency, the
  123  offender commits a felony of the second degree, punishable as
  124  provided in s. 775.082, s. 775.083, or s. 775.084, if the
  125  property is valued at $5,000 or more, but less than $10,000, as
  126  provided under subparagraph 2., or if the property is valued at
  127  $10,000 or more, but less than $20,000, as provided under
  128  subparagraph 3. As used in this paragraph, the term “conditions
  129  arising from the emergency” means civil unrest, power outages,
  130  curfews, voluntary or mandatory evacuations, or a reduction in
  131  the presence of or the response time for first responders or
  132  homeland security personnel. For purposes of sentencing under
  133  chapter 921, a felony offense that is reclassified under this
  134  paragraph is ranked one level above the ranking under s.
  135  921.0022 or s. 921.0023 of the offense committed.
  136         (d) It is grand theft of the third degree and a felony of
  137  the third degree, punishable as provided in s. 775.082, s.
  138  775.083, or s. 775.084, if the property stolen is valued at $300
  139  $100 or more, but less than $600 $300, and is taken from a
  140  dwelling as defined in s. 810.011(2) or from the unenclosed
  141  curtilage of a dwelling pursuant to s. 810.09(1).
  142         (e) Except as provided in paragraph (d), if the property
  143  stolen is valued at $100 or more, but less than $600 $300, the
  144  offender commits petit theft of the first degree, punishable as
  145  a misdemeanor of the first degree, as provided in s. 775.082 or
  146  s. 775.083.
  147         (3)
  148         (e)If a law enforcement officer has probable cause to
  149  believe that a defendant has committed retail theft as defined
  150  in s. 812.015(1), the officer may issue a notice to appear in
  151  lieu of arresting the defendant if the aggregate value of the
  152  merchandise stolen is less than $600 and the defendant has no
  153  previous criminal convictions or juvenile adjudications. The
  154  officer may, under his or her lawful authority, detain the
  155  defendant until such time as the defendant’s identity and
  156  criminal or juvenile history have been provided to the officer
  157  for purposes of making an informed decision regarding issuing
  158  the notice to appear in lieu of arrest.
  159         (f)A state attorney may establish a retail-theft diversion
  160  program in the state attorney’s office or by using an
  161  independent contractor for the purpose of diverting from
  162  prosecution defendants who meet the criteria set forth in
  163  paragraph (e). However, establishing and operating a diversion
  164  program does not affect the authority of the state attorney to
  165  prosecute any defendant for committing retail theft.
  166         1.Upon receipt of a complaint or notice to appear alleging
  167  the crime of retail theft, a state attorney who operates a
  168  retail-theft diversion program shall determine whether the
  169  defendant is appropriate for referral to the retail-theft
  170  diversion program. In making such determination, the state
  171  attorney shall consider:
  172         a.The value of the merchandise stolen in the retail theft;
  173         b.The existence of other pending complaints or criminal
  174  charges against the defendant;
  175         c.The strength of the evidence of the retail theft; and
  176         d.Victim input.
  177         2.Upon referral of the defendant to the retail-theft
  178  diversion program, the state attorney shall mail a copy of the
  179  notice to appear to the defendant. The notice must contain all
  180  of the following:
  181         a.The date and location of the alleged retail-theft
  182  offense.
  183         b. The date before which the defendant must contact the
  184  retail-theft diversion program office concerning the notice to
  185  appear.
  186         c.A statement of the maximum penalty for the retail-theft
  187  offense.
  188         3.If the state attorney permits the defendant to enter the
  189  retail-theft diversion program, the state attorney shall enter
  190  into a written agreement with the defendant to divert him or her
  191  from prosecution for retail theft. The diversion agreement must
  192  include all of the following conditions, which must be accepted
  193  by the defendant:
  194         a.Attendance and proof of completion of a program designed
  195  to assist, educate, and prevent future unlawful conduct by the
  196  defendant;
  197         b.Full restitution, if any is established, of the value of
  198  the retail theft;
  199         c.Full payment of fees due under subparagraph 5.; and
  200         d.A knowing and intelligent waiver of the defendant’s
  201  right to a speedy trial for the period of his or her diversion.
  202         4.Any defendant who does not fulfill all conditions in the
  203  diversion program may be prosecuted for the crime of retail
  204  theft.
  205         5.To fund the retail-theft diversion program, the state
  206  attorney may collect a fee from each participating defendant.
  207  The fee for each defendant may not exceed:
  208         a.Twenty-five dollars, if the value of the stolen
  209  merchandise does not exceed $50.
  210         b.Thirty dollars, if the value of the stolen merchandise
  211  is more than $50 but does not exceed $100.
  212         c.Forty dollars, if the value of the stolen merchandise is
  213  more than $100 but does not exceed $600.
  214         Section 2. Subsection (8) of section 812.015, Florida
  215  Statutes is amended to read:
  216         812.015 Retail and farm theft; transit fare evasion;
  217  mandatory fine; alternative punishment; detention and arrest;
  218  exemption from liability for false arrest; resisting arrest;
  219  penalties.—
  220         (8) Except as provided in subsection (9), a person who
  221  commits retail theft commits a felony of the third degree,
  222  punishable as provided in s. 775.082, s. 775.083, or s. 775.084,
  223  if the property stolen is valued at $600 $300 or more, and the
  224  person:
  225         (a) Individually, or in concert with one or more other
  226  persons, coordinates the activities of one or more individuals
  227  in committing the offense, in which case the amount of each
  228  individual theft is aggregated to determine the value of the
  229  property stolen;
  230         (b) Commits theft from more than one location within a 48
  231  hour period, in which case the amount of each individual theft
  232  is aggregated to determine the value of the property stolen;
  233         (c) Acts in concert with one or more other individuals
  234  within one or more establishments to distract the merchant,
  235  merchant’s employee, or law enforcement officer in order to
  236  carry out the offense, or acts in other ways to coordinate
  237  efforts to carry out the offense; or
  238         (d) Commits the offense through the purchase of merchandise
  239  in a package or box that contains merchandise other than, or in
  240  addition to, the merchandise purported to be contained in the
  241  package or box.
  242         Section 3. This act shall take effect October 1, 2009.