by George C. Via
How many times has this case come across your desk? The client, wittingly or not, buys or receives stolen property and pawns it. Or a friend (we’ll call him “the thief”) says his ID is lost and asks the client to pawn what turns out to be stolen property. The client puts his fingerprints on the pawn slip and somewhere states that he is the owner of the property. Sometimes the value of the stolen property is less than $100, other times it’s over $300.
After a minimal investigation that involves police submitting the fingerprint cards from the pawnshop for comparison and obtaining a statement from the victim of the theft, the state routinely files an information with a trilogy of charges against your client: dealing in stolen property (trafficking),1 grand theft, and receiving money from a pawnbroker on false verification of ownership.2
Often the state will add burglary of a dwelling if the property was pawned within several hours of the burglary, employing the statutory inference found in F.S. §812.022(2).3 Because the inference of guilt from possession of stolen property is essentially circumstantial evidence, the court requires additional evidence of suspicious behavior on behalf of your client before allowing the statutory inference to apply.4
Dealing in stolen property [DSP] (trafficking) is a second-degree felony, with a maximum penalty of 15 years in the Department of Corrections. It is also a level five on the sentencing guidelines scoresheet, racking up 28 points for your client.5 Without much of a criminal record, or even if you get him probation and he violates, your client can be facing mandatory time in prison, let alone the maximum exposure of 25 years DOC for the three felony charges if he goes to trial and loses.
If by now something is not troubling you, and you are willing to throw up your hands in surrender and plead your client into all three felony charges, you might already be committing malpractice. Indeed, it is precisely this kind of harsh penalty for what is essentially a minor theft offense that makes one invoke the specter of Draco,6 and should cause defense attorneys to challenge the state’s charges.
At this juncture, a word on the history of the DSP statute seems appropriate, and you might be shocked to learn that your client’s conduct was not the reason the statute was enacted. Most notably, the DSP statute was drafted to combat organized crime rings that steal and launder quantities of stolen property. Because the crime boss or ringleader was often insulated from the activities of his or her underlings, he or she could avoid prosecution. As such, there are separate charges for “trafficking” (the underlings/fences) and “initiating” (the boss).7 Why, then, is the smalltime thief (your client) facing a DSP trafficking charge, as if he or she were some kind of singular Mafia enterprise? In all candor, the answer is because an overwhelming majority of defense lawyers don’t know any better. 8
What might surprise the criminal defense bar is a review of F.S. §812.025 and Hall v. State, 826 So. 2d 268, 271 (Fla. 2002). Section 812.0259 allows the state to charge both DSP and any theft-related charge in the same information, but prevents the trier of fact from returning convictions for both, while Hall is a Florida Supreme Court case detailing the elements and legislative history of the DSP statute.
As to the statutory prohibition against dual convictions, it is clear that theft is taking or possessing stolen property, while DSP is selling stolen property. It should be obvious, then, that convictions for both DSP and theft of the same property violate double jeopardy. If there is any question, it is clarified in Hall:
Section 812.025 allows the [s]tate to charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts, but the trier of fact must then determine whether the defendant is a common thief who steals property with the intent to appropriate said property to his own use or to the use of a person not entitled to the use of the property or whether the defendant traffics or endeavors to traffic in the stolen property. The linchpin of section 812.025 is the defendant’s intended use of the stolen property. The legislative scheme allows this element to be developed at trial and it is upon this evidence that the trier of fact may find the defendant guilty of one or the other offense, but not both.10
Lamentably, the vast majority of criminal defense attorneys are oblivious of this statute, as time and again criminal defendants are seen to accept a “negotiated” plea to both DSP and GT charges for pawning one item, without any real plea negotiating, with no pretrial litigation over the charges, and with no apparent benefit to the client.
The distinction of a negotiated plea with the state attorney’s office, or even the court, is important. Even though the double jeopardy issue is fundamental error which may be raised for the first time on appeal,11 a defendant can waive this issue on a negotiated plea where he benefits from it.12 As such, lawyers who simply plea their clients out to a guidelines sentence may not have anything to show for failing to address the double jeopardy issue in a negotiated plea.13 The client cannot correct the error on appeal, which leaves postconviction claims of ineffective assistance of counsel as the only remedy.
By contrast, an open no contest plea to the bench requires the court as the “trier of fact”14 to make a determination as to which charge the defendant should be convicted, and otherwise preserves the issue for appeal should the trial court find him guilty of both. The Florida Supreme Court in Hall held:
Just as the trier of fact must make a choice if the defendant goes to trial, so too must the trial judge make a choice if the defendant enters a plea of nolo contendere to both counts. Legislative history leads us to believe that this comports with legislative intent. Thus, we find that section 812.025 prohibits a trial court from adjudicating a defendant guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct pursuant to a plea of nolo contendere.15
It is important then, when entering the plea to the bench, that defense counsel argue to the court the grounds to acquit the client on the DSP charge.
By far, the most significant argument for your client is that the holding in Hall requires the state to allege and prove that your client was knowingly engaged in an ongoing criminal enterprise of thieves and fences before a conviction for DSP will stand. Without this, Hall posits, your client is only guilty of theft, even if he initiates “some form of transfer” (such as pawning it):
[S]ection 812.019, which is part of the Florida Anti-Fencing Act, Chapter 77-342, Laws of Florida, is intended to punish those who knowingly deal in property stolen by others. [State v. Camp, 579 So. 2d [763, 764 (Fla. 5th DCA 1991)]. The basic scenario envisions a person who steals and then sells the stolen property to a middleman (the “fence”) who in turn resells the property to a third person. The statute punishes both the initial thief and the fence. See §812.012(7), Fla. Stat. (1989).
It appears that the dealing in stolen property statute and the theft statute address two different evils. The former is directed toward the criminal network of thieves and fences who knowingly deal in the redistribution of stolen property, whereas the theft statute is directed toward those persons who steal for personal use and for whom redistribution is incidental.
[E]vidence of theft only, with the intent personally to put the stolen item or items to normal use, constitutes only the crime of theft and not the crime of trafficking or dealing in stolen property within the meaning of chapter 812, Florida Statutes, even if the normal use is achieved by some form of transfer, distribution, dispensation, or disposition of the item.16
Indeed, the statute is subject to routine misuse, especially when one considers this likely scenario: pawnbrokers buy what they should know is stolen property. When police discover it, instead of being a target, the pawnbroker is now a victim and the state’s star witness.17 If the theft goes undetected and the property is sold, then the pawnshop profits from the crime, and is still insulated from any criminal prosecution.18
As such, given the usual paucity of the state’s evidence relating to your client’s knowledge that the property was stolen, or how he or she acquired it (as in the original example), and since a one-time pawning by no means meets the requirement of an ongoing criminal trafficking enterprise, it is clear that the DSP trafficking charge should routinely be dismissed.
In conclusion, the arsenal of weapons that defense attorneys can raise to effectively represent their client should include, at the very the least:
1) A strong negotiating posture with the state to dismiss the DSP charge.
2) If necessary, a C419 sworn motion to dismiss admitting that your client is not involved in “an ongoing criminal enterprise of thieves and fences” pursuant to Hall, citing double jeopardy pursuant to F.S. §812.025, and arguing that the statute is designed to reach organized crime and fences, not the common thief;
3) A motion to dismiss the DSP charge on vagueness and overbreadth, arguing that the information fails to allege conduct or ultimate facts20 which would constitute a violation of the charge; and
4) If applicable, a motion in limine to strike the statutory inference in §822.022(2), citing Graham.
And lest we forget the theme of this article: the defense attorney should never, under any circumstances, negotiate a plea to both DSP and GT without obtaining some kind of benefit for his or her client.
1 Fla. Stat. §812.019, Dealing in stolen property.
“(1) Any person who traffics in, or endeavors to traffic in, property that he or she 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.”
2 If the client went to the pawnshop twice, a second trilogy of charges is filed against him.
3 Fla. Stat. §812.022(2): “Except as provided in subsection (5), proof of possession of property recently stolen, 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.”
If there is no other evidence of the burglary besides the statutory inference, see State v. Graham, 238 So. 2d 618 (Fla. 1970).
4 Graham, 238 So. 2d at 621, held: “Proof of mere naked possession of property recently stolen, not aided by other proof that the accused received it knowing it to have been stolen, is not sufficient to show guilty knowledge. Proof of possession should be coupled with evidence of unusual manner of acquisition, attempts at concealment, contradictory statements, the fact that the goods were being sold at less than their value, possession of other stolen property, or other incriminating evidence and circumstances.” (Citations omitted.)
Contra, Haugabrook v. State, 827 So. 2d 1065, 1068 (Fla. 2d D.C.A. 2002), where the court was apparently not made aware of the holding in Graham: “This court previously held, in affirming a conviction for dealing in stolen property, that the ‘inference created by the statute is sufficient to convict.’” (Citation omitted.)
5 Dealing in stolen property (initiating), pursuant to Fla. Stat. § 812.019(2) is a first-degree felony, maximum 30 years DOC, level 7, scoring 56 points and mandatory prison.
6 Draco (also Dracon) was a lawmaker from ancient Greece (621 B.C.) who apparently did an excellent job revising Greek laws, but mandated the death penalty for even the smallest violation. Hence the term “draconian.”
7 See Goddard v. State, 458 So. 2d 230, 233-34 (Fla. 1984) (“The legislative history of chapter 77-342 reveals that the Florida Anti-Fencing Act was adapted from a model theft and fencing act developed by G. Robert Blakey and endorsed by the National Association of Attorneys General (NAAG). According to the NAAG, one of the model act’s primary purposes is to facilitate the prosecution and conviction of ‘white collar’ fences who often escape punishment because they never come into contact with stolen goods. Commentary on the model act’s counterpart to section 812.019(2) states: ‘The model, recognizing the sophisticated nature of organized crime, extends not only to a person who “traffics in” stolen property, but to one who “initiates, organizes, plans, finances, directs, manages or supervises” the theft or trafficking.’ This is directed at the person who, although he may be responsible for a theft or a fencing operation, has no direct contact with the property. He is therefore insulated from the prosecution under most present laws.
The penalties are higher for a person who organizes or directs the fencing operation than for the person who merely traffics in stolen property. This differential is in accord with the economic realities of major fencing operations. The penalties are graded according to the offender’s role, but not according to the value of the property involved.” (Emphasis in original, citations omitted.))
8 And, for that matter, assistant state attorneys.
9 Fla. Stat. §812.025, “Charging theft and dealing in stolen property — Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.” (Emphasis supplied.)
10 Hall, 826 So. 2d at 271.
11 See Eichelberger v. State, 949 So. 2d 358 (Fla. 2d D.C.A. 2007) (“Because a double jeopardy violation constitutes fundamental error, it may be raised for the first time on appeal.”)
12 See Rosado v. State, 867 So. 2d 440, 442 (Fla. 4th D.C.A. 2004) (where the court agreed not to habitualize the defendant in exchange for an open plea to the bench. The Fourth District held “even fundamental errors such as double jeopardy may be waived when the dual conviction arises from a negotiated plea agreement.”).
13 Not to mention the level five prior conviction that will appear on the client’s next criminal record scoresheet.
14 The lower court in Hall reasoned that the statutory language “trier of fact” applied only to a jury verdict, citing Brown v. State, 464 So. 2d 193 (Fla. 1st D.C.A. 1985), approved on other grounds by, 487 So. 2d 1073 (Fla.), cert. denied, 479 U.S. 930 (1986), and certified conflict with Victory v. State, 422 So. 2d 67 (Fla. 1st D.C.A. 1982).
15 Hall, 826 So. 2d at 271. And while it is not clear from the opinion whether Hall’s trial attorney addressed the double jeopardy issue at the time of the plea, the author deems it good practice for attorneys to do so.
16 Hall v. State, 826 So. 2d at 271 (emphasis in original, citations omitted).
17 In Gonzalez v. State, 948 So. 2d 892 (Fla. 5th D.C.A. 2007), cert. denied, (Table, no. SC07-508). The Fifth District commented that this author’s constitutional attack on the DSP statute, on the grounds of overbreadth and equal protection violations, and raising this abusive scenario, was “an interesting argument,” but nonetheless upheld the statute.
18 Moreover, experienced thieves know better than to leave their fingerprints on a pawn slip, and will find someone else to pawn the stolen property and take the felony charges. Pawnshops rarely ask the simple question, “Did someone ask you to pawn this property?,” which would protect innocent dupes from going to prison.
19 Fla. R. Crim. P. §3.141(c)(4).
20 For example, the ongoing criminal enterprise language from Hall.
George C. Via is an assistant pubic defender for the Ninth Judicial Circuit in Orange County and handles a range of felony criminal trial cases. Prior to that, he worked in Miami as an assistant public defender and then was a solo practitioner. He received his J.D. from the University of Miami.