THEFT BY TAKING & THEFT BY DECEPTION IN GEORGIA
There are several different kinds of theft offenses under Georgia law and each has different elements that need to be proven by the State’s Attorney to get a conviction. Such offenses include: theft by shoplifting, theft of services, theft by conversion, theft by extortion and theft of lost or mislaid property. At Bixon Law, we are experienced criminal defense attorneys who are knowledgeable in all of the various types of theft offenses in Georgia. You can learn more about theft by taking and theft by deception below and if you have been accused of any theft crime, please don’t hesitate to contact us today.
THEFT BY TAKING IN GEORGIA
Under Georgia law, O.C.G.A. 16-8-2, a person commits the offense of theft by taking when he or she unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving the owner of the property, regardless of the manner in which the property is taken or appropriated.
THEFT BY DECEPTION IN GEORGIA
Under Georgia law, O.C.G.A. 16-8-3, a person commits the offense of theft by deception when he or she obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property. A person deceives if he or she intentionally:
(1) Creates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false;
(2) Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed;
(3) Prevents another from acquiring information pertinent to the disposition of the property involved;
(4) Sells or otherwise transfers or encumbers property intentionally failing to disclose a substantial and valid known lien, adverse claim, or other legal impediment to the enjoyment of the property, whether such impediment is or is not a matter of official record; or,
(5) Promises performance of services which he does not intend to perform or knows will not be performed. Evidence of failure to perform standing alone shall not be sufficient to authorize a conviction under this subsection.
“Deceitful means” and “artful practice” do not, however, include falsity as to matters having no pecuniary significance, or exaggeration by statements unlikely to deceive ordinary persons in the group addressed.
PENALTIES FOR THEFT CHARGES IN GEORGIA
The penalties for theft offenses in Georgia are outlined in O.C.G.A. 16-8-12 and can result in either a misdemeanor or felony conviction. A misdemeanor is considered a low-level crime punishable by a fine and/or jail time up to one year. A felony is a more serious offense that is punishable by imprisonment greater than one year and time is usually served in a prison facility as opposed to the county jail. A felony theft conviction can also carry a fine at the Court’s discretion.
In theft cases, whether a person is charged with a misdemeanor or felony theft offense depends on the value of the property stolen. If the value is less than $500.00 then the charge will result in a misdemeanor offense. However, if the property which was the subject of the theft exceeded $500.00 in value then it will be considered a felony offense.
There are also other factors that come into play when the Court is sentencing a defendant who has been convicted of a theft crime. For instance, if the property was taken by a fiduciary in breach of a fiduciary obligation or by an officer or employee of a government or a financial institution in breach of his or her duties as such officer or employee then the punishment is imprisonment for not less than one nor more than 15 years and a fine. If a person is convicted of theft by taking and the property was a memorial to the dead or any ornamentation, flower, tree, or shrub placed on, adjacent to, or within any enclosure of a memorial to the dead then he or she can be sentenced to imprisonment to one or more than three years in prison.
If the defendant is convicted of stealing a motor vehicle or a motor vehicle part or component which exceeds $100.00 in value or if the theft or unlawful activity was committed or while engaged in telemarketing conduct, the punishment can result in imprisonment for not less than one nor more than ten years. Subsequent theft offenses can result in imprisonment for not less than one year nor more than 20 years.
GEORGIA CASE LAW & THEFT BY TAKING
When being charged with theft by taking and defending against it, it is important for defense counsel to ensure that the charges against the defendant are not unlawfully stacked. Multiple items stolen during a theft crime does not equate to the defendant having committed multiple theft offenses. In Bigby v. State, 184 Ga. App. (1987), the defendants stole a trailer that was loaded with 115 bales of scrap aluminum that was on the property of General Extrusion, Inc. in Union City. The defendants contended that count two of the theft by taking charge should have been dropped because both counts arose out of the same transaction. The Court relied upon the holding in Hubbard v. State, 168 Ga. App. 778, (310 SE2d 556) (1983), “We find that Hubbard holds that there can only be one sentence and conviction if several items are stolen as part of a continuous criminal act. Bigby was convicted only on count two and cannot be retried on count one, which resulted in a mistrial. Lundy can be convicted and sentenced on only count one, and his conviction on count two must be set aside.”
GEORGIA CASE LAW & THEFT BY DECEPTION
When defending against any case, it’s important to know all of the facts and circumstances surrounding the alleged criminal act and to know the elements required in order for the State to prove its’ case. As in the case of Elliott v. State, there is always a chance that the accused did not actually commit the alleged crime. In Elliott v. State, 149 Ga. App. 579, (1979), the defendant was charged with theft by deception. He was found not guilty of that specific theft offense because he made a future promise to come back and pay for the furniture that he was accused of stealing. He could not be convicted of theft by deception because he made no false representation—an element of theft by deception that is required to be satisfied under Georgia law before a person can be convicted of the offense.
“An essential element of the offense of theft by deception…is that the false representation must bear upon ‘an existing fact or past event.’ Croy v. State, 133 Ga. App. 244 (211 SE3d 183) (1974). The only representations made by the defendant were that he was getting a loan and would pay for the goods when he received the proceeds. These representations pertained to the future and, even if false and fraudulent, cannot be the basis of a prosecution for cheating and swindling. Gilligan v. State, 64 Ga. App. 311 (1) (13 SE2d 112) (1941). The facts of this case fall squarely within the rule enunciated in Croy v. State that a “promise of future performance cannot serve as the basis of a…theft by deception prosecution.”
DEFENSES TO THEFT BY TAKING & THEFT BY DECEPTION
As with any criminal charge, your future is at stake. Here at Bixon Law, we’ll assist you in strategizing the best possible defense in your case depending on the facts and circumstances involved. In theft cases as those discussed in this article, there are some possible defenses:
Actual Innocence & Alibi Witnesses: If you didn’t commit the crime, you shouldn’t have to do the time. The defendant can claim actual innocence and present evidence that he or she was somewhere else when the crime was committed. This usually occurs through alibi witnesses.
No Intent to Commit the Crime: Georgia law of theft requires that the accused have the intent to deprive the owner of their property. Thus, the prosecution must prove that the accused intended to take the property of another. If the defendant took another’s property believing that it was truly his or hers and can provide evidence to support their defense then the State will have a hard time convicting the defendant of theft.
Future Payment: As in the Elliot v. State case, if the defendant arranged to pay for any allegedly stolen items by making a promise to make a future payment then the defendant cannot be convicted of theft by deception because no false representations was made.
Continuous Criminal Act: As mentioned, multiple items stolen during a theft crime does not equate to the defendant having committed multiple theft offenses. If a defendant has been charged with multiple theft offenses, there may be evidence in his or her case that proves that the criminal act constituted one continuous crime. If that is so, only one theft offense is appropriate as in the case of Bigby v. State.
Value of the Property: A defendant charged with a felony theft violation should make sure that his or her defense counsel ascertains the true value of the alleged stolen property. If the property the defendant has allegedly stolen is less than $500.00, excluding other factors, there may be a chance that the charge against the defendant could be reduced to a misdemeanor.
CONTACT BIXON LAW TODAY
If you or a loved has been charged with theft by taking or theft by deception, call Bixon Law today. You need an experienced Georgia criminal defense lawyer who will defend your legal rights and vigorously advocate on your behalf to have your case dismissed or the charges against you reduced. As experienced trial attorneys, we are also not afraid to take your case to trial if necessary. We represent clients in Atlanta and throughout the state of Georgia. We are lawyers who are committed to helping people in difficult situations and we invite you to call us at 404-551-5684 for a free consultation today.