Claims of Right in Theft and Robbery Prosecutions
In theft1 and robbery cases,“claim of right” refers to a claim by the defendant that he
has some right to possess the property he took from the victim. There are two basic types of claims of right: a “specific” claim, i.e., a claim to possess the specific property taken; and a “debt” claim, i.e., a claim that the property taken will satisfy a debt the victim owes. A second distinction to be noted is that between an “actual” claim and a “good faith” claim. In the former, the defendant does have the right to possess the property taken, or the victim does owe the defendant a valid debt. In the latter, the defendant mistakenly, but in good faith, believes he is entitled to the property or the debt is due.
Although often spoken of as a defense, claims of right are not affirmative defenses. An affirmative defense concedes the state’s prima facie case but adds further facts that negate criminal liability. Claims of right do not concede the state’s prima facie case but rather dispute one of its crucial elements: the mens rea ( i.e., the intent to steal, which in turn is the intent to take the property of another).2
Claims of right are well-recognized in Florida theft cases. The availability of such claims in Florida robbery cases was unquestioned until 1991, when the First District issued its opinion in Thomas v. State (Thomas II), 584 So. 2d 1022 (Fla. 1st DCA 1991). That case disallowed a debt claim of right for two reasons: 1) Debt claims were not recognized in the common law, and 2) claims of right were rejected in the enactment of the 1974 criminal code.
This article first discusses the history of claims of right in the Florida case law. Thomas II is then analyzed. The article concludes that, although Thomas II may be correct that a debt claim of right was unavailable under the facts of that case, Thomas II is wrong to the extent it concluded that claims of right are no longer available in any robbery case.
Claims of Right in
Florida Theft Cases
In theft cases, it is well-settled that “the defendant’s honest belief in [his] right to the [property taken]. . . negates the specific intent that is an indispensable element of the crime. . . . ”3 Claims of right are available even if the defendant’s belief is unreasonable. The claim is valid if it is made “in good faith[,] however puerile or mistaken the claim may in fact be”; the claim will be disallowed only if it “is dishonest, a mere pretence.”4
Although the question of the defendant’s belief is ordinarily a jury question, a judgment of acquittal is appropriate “when the evidence of good faith is uncontradicted and all the circumstances corroborate the claim of taking in good faith of ownership. . . . ”5 Further, “[w]here the taking is open, and there is no subsequent attempt to conceal the property, and no denial, but an avowal, of the taking, a strong presumption arises that there was no felonious intent. . . . ”6 However, “[a]lthough secreting of the proceeds may be a factor in the jury’s consideration of whether the defendant’s belief is an honest or spurious one,. . . claim of right does not require that. . . the actual taking be openly accomplished.”7
The reported theft cases almost always involve specific claims of right. Although no Florida cases expressly consider whether debt claims of right are available, the Third District did not question the availability of such a claim in what may be a debt claim situation.8
Claims of Right in
Florida Robbery Cases
The Florida Supreme Court has indicated in dicta that it would recognize claims of right in robbery prosecutions.9 Further, this conclusion seems to follow from the fact that “it is legally impossible to prove robbery without proving [theft]”10 and, as just noted, claims of right are available in theft prosecutions.
The first reported Florida case to expressly address the question— Thomas v. State (Thomas I), 526 So. 2d 183 (Fla. 3d DCA 1988)—adopted this latter logic to conclude that specific claims of right are available in robbery cases. In the only other reported decision on point— Thomas II —the defendant asserted a debt claim of right and the property taken was money. As just noted, Thomas II held the claim was unavailable because 1) the common law did not recognize debt claims of right, and 2) the enactment of a new statutory robbery offense in the 1974 Florida Criminal Code abrogated claims of right in robbery cases.
As to the first point, the court, after noting that “most jurisdictions” recognize specific claims of right, but “many jurisdictions” deny debt claims, said it agreed with the latter jurisdictions because, in debt claims, “the defendant has no ownership or immediate possessory interest in the specific property taken, i.e., money, and under such circumstances the requisite intent to steal is present.”11
As to the second point, the court asserted:
Although the “common law of England in relation to crimes [is] of full force in this state where there is no existing provision by statute on the subject,” Sec. 775.01, Fla. Stat. (1989), since the adoption of the “Florida Criminal Code” in 1974. . . nearly all prosecutions for criminal offenses have been governed by an applicable criminal statute. Thus, [the current robbery statute]. . . has superseded the corresponding common law criminal offense. One of the stated purposes [of the Criminal Code] is “[to] proscribe conduct that improperly causes or threatens to cause substantial harm to individual or public interest.” Sec. 775.012(1), Fla. Stat. (1989).
The offense of “robbery” is defined in [part as the taking of “property of another”].
“Property of another” is defined in section 812.012(4) to mean “property in which a person has an interest upon which another person is not privileged to infringe without consent, whether or not the other person also has an interest in the property.” [T]hese provisions manifest a legislative policy and statutory intent to criminally proscribe the taking of any property in the possession of another so long as the taker is required to obtain the consent of the person holding the property in accordance with law before being entitled to deprive that person of possession. These statutory provisions, read in context with the quoted purpose of the criminal code, are inconsistent with the rationale of the common law claim of right defense, at least insofar as a forceful or violent taking of money is concerned. . . . We hold that the current statutory provisions governing robbery and theft clearly preclude reliance on the claim of right defense. . . under the circumstances of this case, because Thomas had no lawful right whatsoever to take money from the victim to satisfy a disputed debt through the use of force and violence to overcome the victim’s refusal to give consent.12
Thomas I and Thomas II are not necessarily inconsistent with one another. Thomas II distinguishes Thomas I; it neither recognizes any conflict with it, nor disapproves of its logic or conclusion. The common law recognized claims of right (in both robbery and theft cases) in a variety of situations; the primary dispute among the various jurisdictions concerns the availability of debt claims of right.13 The current trend is to reject such claims, at least in robbery cases. If Thomas II is limited to holding that debt claims of right are not available in robbery prosecutions, it is defensible and arguably correct.
However, Thomas II’s alternative holding may be read more broadly. Thomas II may be read as meaning all claims of right are eliminated in robbery prosecutions (because the force that is an essential element of that crime will invariably threaten to cause substantial harm). Further, Thomas II’s reading of the significance of the definition of “property of another” could be read as seriously cutting back on claims of right in theft cases, to only those cases in which the defendant actually has a legally recognized privilege to take the property without the victim’s consent. This would seem to eliminate both debt claims and good faith specific claims, and perhaps substantially narrow the actual specific claim.
This latter conclusion would depend on the precise meaning of the phrase “property of another”: Under exactly what circumstances is the defendant “privileged to infringe without consent” on the victim’s interest in the property? Neither Ch. 812 nor the case law provide any guidance on this point. It would seem this question is to be answered by reference to tort law, particularly the torts of conversion and trespass to chattels.
A discussion of the applicable tort law principles is beyond the scope of this article.14 For present purposes, it is enough to note the following: Traditionally, the availability of claims of right did not turn on principles of tort law. In robbery and theft prosecutions, the crucial question is not whether the defendant should be liable to the victim for monetary damages resulting from the defendant’s interference with the victim’s property rights; rather, the question is whether the defendant’s actions are criminal, which in turn generally requires a showing of a more culpable mental state than that required for a tort suit.15
Thomas II’s broader alternative holding is based on two premises: 1) The common law claim of right in robbery cases was superseded by the Florida Criminal Code; and 2) the stated purposes of the code, when read in conjunction with the definition of “property of another,” establishes a legislative intent to restrict claims of right in robbery cases.
The remainder of this article examines these two premises. It will be concluded that both premises are questionable. Indeed, it appears that the common law recognition of broad claims of right has not been rejected by the current statutes.
Thomas II Analyzed
• The Florida Criminal Code and the Common Law of Robbery
The Florida Common Law Statute. As used in §775.01, the phrase “common law of England” refers not only to decisions of the English courts, but also to decisions of American courts. This statute adopts the common law by legislative act and limits the power of the courts to modify the common law. The common law cannot be modified by doubtful implication; a statute should not be construed as altering the common law any farther than its words and circumstances permit. If a common law principle is clearly established, the courts must enforce it until it is repealed by legislature; “[w]hen the common law is clear [the courts] have no power to change it.”16
Although the common law controls “where there is no existing provision by statute on the subject,” it is not clear what it means to say where there is a “provision by statute on the subject.” Does this mean there must be a statutory provision specifically addressing a given “subject,” or is it sufficient if there is a statute covering the subject in a general way? The subject of claims of right illustrates the point. Clearly, there is a “statute on the subject” of robbery. However, there is no provision in that statute that specifically addresses the question of claims of right. Does the existence of the robbery statute mean 1) claims of right are no longer recognized because there is now a “statute on the subject” and it does not specifically provide for such a claims, or 2) such claims are still available because there is no statutory provision that specifically abrogates them?
It must mean the latter. Otherwise, such defenses as voluntary intoxication, coercion, and duress (which, like claims of right, are defenses that negate the requisite mental state) would not be available either (since the robbery statute does not specifically provide for such defenses either).17 Further, although the crime of robbery has been defined by statute in Florida for over 100 years, Florida courts have traditionally looked to the common law to help define the statutory offense.
• Florida Robbery Statutes and the Common Law.
For over 100 years, robbery was defined in Florida statutes as follows: “Whoever, by force, violence or assault or putting in fear, feloniously robs, steals and takes away from the person or custody of another, money or other property which may be the subject of larceny, shall be guilty of [robbery].”18
In the 1974 Criminal Code, robbery was redefined as “the taking of money or other property. . . from. . . another by force, violence, assault, or putting in fear.”19 The primary modification made by this new definition was the elimination of the word “feloniously”; the rest of the elements of the offense remained essentially the same.
In construing both the old and the new robbery statutes, the Florida Supreme Court has repeatedly asserted that the statutes are “consistent with the common law.”20 Further, “it will not be presumed, in the absence of language to the contrary, that the Legislature intended to change the nature of the crime as understood at common law.”21
Applying these principles in Bell v. State, 394 So. 2d 979 (Fla. 1981), the court said the elimination of the word “feloniously” from the 1974 robbery statute did not mean that “the legislature. . . expanded the definition [of robbery] and eliminated the requirement of a specific intent to deprive the owner of the [property] taken.”22 Noting that the common law definition of robbery included the specific intent to steal, the court asserted: “[Although] the legislature has the power to dispense with specific intent in defining the crime of robbery[, w]e do not believe that the legislature has demonstrated a clear purpose to do so.”23 The court concluded that specific intent is still an element of robbery.
The clear inference in Bell is that claims of right are still viable in robbery cases. This isbecause it is the specific intent to steal—the requirement that the taking be “felonious”—that creates the claim of right. Property is taken feloniously (i.e., with the intent to steal) only if the taker believes he has no right to take the property. Thus, since specific intent to steal is still an element of robbery in Florida, claims of right (to the extent they negate the requisite specific intent) are still valid.24
Further support for this conclusion is found by reference to State v. Allen, 362 So. 2d 10 (Fla. 1977), cited in Bell.25 In Allen, the court upheld the constitutionality of the 1977 theft statute, holding that the omission of the phrase “with unlawful intent” in that statute did not “ha[ve] the effect of eliminating the element of specific criminal intent”: “We find no evidence to support the notion that the 1977 legislature intended by its omission of the word ‘unlawful’ to eliminate specific criminal intent as an element of this offense.”26
Thus, the Florida Supreme Court will not lightly infer that changes in the statutory definition of robbery or theft significantly alter the nature of those crimes as understood by the common law. Most importantly, the court will not infer a modification of the mental element of these crimes: the specific intent to steal (i.e., to take the property of another). As noted above, claims of right are a natural part of this specific intent; thus, claims of right cannot be modified by casual inference either. Thomas II’s contrary conclusion is wrong.
• General Purposes of the Florida Criminal Code and the Definition of “Property of Another”
Thomas II also relied on the “general purposes” of the Florida Criminal Code and the new definition of “property of another” to conclude that claims of right were severely restricted (or, perhaps, not available at all) in robbery prosecutions. However, this conclusion is also debatable.
It is true that one of the purposes of the Florida Criminal Code is to prohibit conduct that “improperly causes or threatens to cause substantial harm”;27 however, it is doubtful that this general language was meant to eliminate so well-settled a legal principle as that of claims of right. The current Florida robbery statute does not expressly eliminate claims of right, and elimination by inference is unwarranted because the holding in Bell—that specific intent to steal is still an element of robbery—clearly undermines any such inference. At best, the legislative intent on this point is unclear and criminal statutes “shall be strictly construed; when the [statutory] language is susceptible of differing construction, it shall be construed most favorably to the accused.”28
The continued recognition of claims of right in robbery prosecutions will not leave the law helpless to discourage conduct that causes or threatens substantial harm. The defendant who uses force to take his own property may still be punished for the use of force itself (e.g., by a charge of assault or battery); it is just that a robbery conviction is unwarranted.
Thomas II’s linkage of claims of right to the current definition of “property of another” is also questionable. Whether, under principles of tort law, the defendant actually took “property of another” is essentially irrelevant to the question raised by claims of right: Did the defendant intend to steal the property, or did he actually believe (in good faith) he was entitled to take it? Principles of tort law may have some bearing on the answer to this question; the more attenuated the defendant’s claim of right, the less likely it is that he acted in good faith. However, as long as intent to steal is an element in theft and robbery cases, restricting claims of right to only those cases where tort law recognizes a privilege to take the property without the other’s consent overlooks the well-recognized difference in the mental state required for crimes and torts, and thus embraces a doubtful implication to “change the nature of the crime as understood at common law.”29 The definition of “property of another” merely defines the type of property that may be the subject of a theft or robbery offense; it does not attempt to define the mental element of the offense.
• Claims of Right When Money Is Taken
Finally, Thomas II might also be read as eliminating all claims of right (presumably in both robbery and theft cases) when the property at issue is money.30 However, this conclusion is also problematic. For one thing, money can be “specific identifiable property”;31 the defendant could be attempting to recover the actual bills or coins previously taken from him by the victim. Further, regardless of how money is viewed in the law, in fact many people view its inherent fungibility as meaning that the repayment of a monetary debt is essentially the retaking of one’s own money, regardless of the fact that different specific bills are used for the repayment. When you lend a man a 20-dollar bill and you see him the next day with two tens, that is your money he is holding. While the law should not encourage the use of force to take possession of the two tens, convicting you of robbery if you do is too harsh a sanction (or, at least, one can certainly envision factual circumstances where it would be; the world is full of backsliders and deadbeats who often need some gentle persuasion to satisfy their monetary obligations to others). Thus, a categorical rule that claims of right are never available if the property taken is money is probably improper as a matter of policy and certainly—in view of the legal principles just discussed—an unwarranted interpretation of the current Florida robbery statute.32 The same is also true with respect to theft cases.
Conclusion
If Thomas II is limited to a holding that Florida does not recognize debt claims of right in robbery cases because the common law does not recognize such claims, it is defensible and probably correct. This is because, although the earlier cases are divided on the point, the current trend is clearly in line with Thomas II’s conclusion on this point.
However, the broader implications of Thomas II should be rejected. The basic common law claim of right is alive and well in Florida. q
1 Technically, there was no crime of “theft” in Florida until 1977, when Fla. Stat. §812.014 (1977) was enacted. 1977 Fla. Laws ch. 342. The pre-1977 “theft” cases discussed in this article are actually prosecutions brought under the old Florida larceny statutes. In 1977 Fla. Laws ch. 342, the new crime of theft was broadly defined to include “conduct previously known as. . . larceny. . . . ” Fla. Stat. §812.012(2)(d)1 and 2 (1977). The Florida Supreme Court has instructed the courts to look to “the common law and decisional law of this state” for further definition of the various types of theft. Dunnigan v. State, 364 So. 2d 1217, 1218 (Fla. 1978). The inclusion of “conduct previously known as larceny” in the definition of theft incorporates the common law definition of larceny and thus incorporates claims of right. See State v. Allen, 362 So. 2d 10, 11 (Fla. 1977) (omission of phrase “with unlawful intent” in theft statute did not “eliminat[e] the element of specific criminal intent” required to prove larceny). Thus, the older Florida larceny cases on claims of right are still good law under the current theft statute.
2 Kilbee v. State, 51 So. 2d 533, 536 (Fla. 1951); Flint v. State, 196 So. 619, 621 (Fla. 1940).
3 Rodriguez v. State, 396 So. 2d 798, 799 (Fla. 3d D.C.A. 1981).
4 Baker v. State, 17 Fla. 406, 409–10 (1879).
5 Helton v. State, 185 So. 864, 865 (Fla. 1938).
6 Dean v. State, 26 So. 638, 639 (Fla. 1899).
7 Rodriguez, 396 So. 2d at 799 n.3. This presumption is a rule of law only; neither party is entitled to a jury instruction regarding any presumptions arising from the openness—or lack thereof—of the taking. Long v. State, 32 So. 870 (1902). Further, when a claim of right is raised, it is improper to instruct the jury regarding any presumptions arising from “possession of recently stolen property” (see Fla. Std. Jury Instr. (Crim.), p. 136 and 148) because “[that] presumption applies in a different type of case, that is, where the property is indisputably stolen and the question is who stole it.” Jones v. State, 495 So. 2d 856, 857 (Fla. 4th D.C.A. 1986); Gunn v. State, 83 So. 511 (Fla. 1919).
8 Rodriguez, 396 So. 2d at 798–99 (defendants, who managed victim’s motel, can raise claim of right when they “failed to remit to the [victim] the entire proceeds of three room rentals [and] freely admitted that they kept the funds [because] they believed that the money was rightfully theirs under a compensation agreement with the [victim]”).
9 E.g., Johnson v. State, 293 So. 2d 71, 72 (Fla. 1974) (“If the property taken belonged the defendants or they were entitled to the possession of it, the crime would not be robbery.”).
10 State v. Bruns, 429 So. 2d 307, 310 (Fla. 1983).
11 Thomas II, 584 So. 2d at 1024.
12 Id. at 1025–26.
13 See Perkins and Boyce, Criminal Law, ch. 4, §§1.f.1 and 2.a; LaFave and Scott, Criminal Law §§8.5(a) and (d) and §8.11(b) (2nd ed. 1986); Anno., Retaking of Money Lost at Gambling as Robbery or Larceny, 77 A.L.R. 3d 1363, 1366–67 (1980); Anno., Robbery, Attempted Robbery, or Assault to Commit Robbery, as Affected by Intent to Collect or Secure Debt or Claim, 88 A.L.R. 3d 1309, 1312-13 (1981).
14 For a general discussion of the applicable legal principles, see 18 Am. Jur. 2d, Conversion, §§77–78 (1988); Prosser on Torts, §22.
15 See Charles v. State, 18 So. 369, 372 (Fla. 1895).
16 State v. Egan, 287 So. 2d 1, 6–7 (Fla. 1973).
17 This logic would also apply to every other criminal offense defined in the Florida Criminal Code. For example, the current “statute on the subject” of unlawful homicide does not provide for defenses like intoxication, duress, or coercion either.
18 Fla. Stat. §813.011 (1973).
19 Fla. Stat. §812.13(1) (1974).
20 Royal v. State, 490 So. 2d 44, 46 (Fla. 1986).
21 Williams v. Mayo, 172 So. 86, 87 (Fla. 1937).
22 Bell, 394 So. 2d at 979.
23 Id. at 979–80.
24 The court’s reluctance to infer a legislative intent to change the common law definition of robbery is further illustrated by Royal, 490 So. 2d 44 (Florida statutory offense of robbery embraces the common law rule that “the violence or intimidation [that is an element of the offense] must precede or be contemporaneous with the taking of the property”; although phrase “in the course of committing a robbery,” as defined in §812.13(3), includes “flight after the attempt or commission [of the robbery],” that phrase only applies to the aggravating factor of carrying a weapon during the robbery, and thus did not expand definition of robbery).
25 See Bell, 394 So. 2d at 979–80.
26 Allen, 362 So. 2d at 11.
27 Fla. Stat. §775.012(1) (1997).
28 Fla. Stat. §775.021(1) (1997).
29 Williams v. Mayo, 172 So. at 87.
30 See Thomas II, 584 So. 2d at 1025–26.
31 Id. at 1027.
32 It takes only a minimal amount of force or threat of force to establish a robbery. See 15A Fla. Jur. 2d, Criminal Law, §§3869-74 (1997). Thus, the line between the firm insistence on the immediate repayment of a debt and the use of a threat of force to relieve another of what is technically his own property can be a hazy one.
Richard J. Sanders handles criminal appeals for the 10th Judicial Circuit Public Defender’s Office. He received his B.S. in economics from the University of New Orleans in 1979 and his J.D. from the University of Pennsylvania Law School in 1982.
This column is submitted on behalf of the Criminal Law Section, George E. Tragos, chair, and Randy E. Merrill, editor.
