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Orlando Criminal Defense Lawyer > Blog > Theft Crime > Is It Still Shoplifting If You Put the Merchandise Back?

Is It Still Shoplifting If You Put the Merchandise Back?


Under Florida law, a person commits theft if they “knowingly” obtain to use–or “endeavor” to obtain or use–someone else’s property with the intent to deprive that person of their property. Put another way, you can still be convicted of theft in Florida by attempting (i.e., endeavoring) to take someone else’s property, even if that attempt ultimately proved unsuccessful. But what about a case where you start to commit a theft but change your mind? For example, could you avoid a shoplifting charge by putting the merchandise back on the shelf before you leave the store?

Voluntary vs. Involuntary Abandonment

The Florida Fifth District Court of Appeal recently addressed this exact scenario. In this case, Anderson v. State, the defendant walked into a department store. He took empty gift bags from his backpack and started filling those bags with the store’s merchandise. This was caught on the store’s surveillance cameras.

A store manager, apparently noticing what was happening, then “made eye contact” with the defendant, according to court records. Suspecting the jig was up, the defendant dropped the gift bags he’d filled with merchandise–$450 in polo shirts, to be precise–and walked out of the store. He was nevertheless arrested and charged with petit theft and criminal trespass.

At trial, the defendant tried to present an affirmative defense of “abandonment.” This is a common law rule that allows a defendant to argue they never “completed” the alleged criminal act because they abandoned or withdrew. The judge, however, refused to instruct the jury on abandonment. The jury subsequently found the defendant guilty on all charges.

The Fifth District upheld the conviction. It explained that the abandonment defense only applied in situations where the abandonment itself was “complete and voluntary.” In contrast, the defense is not available when there is “involuntary abandonment,” i.e., the defendant withdrew because they were about to be caught or faced some other “unexpected difficulty” in completing the crime.

In this case, the appellate court said the surveillance footage clearly established any abandonment by the defendant was involuntary rather than voluntary. The Court also emphasized that under Florida’s theft law, the mere fact the defendant placed the merchandise in bags with the initial intent to carry them out of the store was enough to sustain a conviction. He did not actually have to take them out of the store.

Contact the Joshi Law Firm Today

An important lesson here is never assume you cannot be charged with theft just because the police do not catch you with the stolen merchandise on you. And if you are facing theft or similar charges, make sure you speak with a qualified Orlando theft crime attorney as soon as possible. Contact the Joshi Law Firm, PA, today to schedule a free consultation.




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