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Can my fiance be CONVICTED if he is Innocent of Petit Theft( has 2 priors)? No evidence was found on him? Should he go to trial?

Altamonte Springs, FL |

My fiance has had 1 petit theft with adjudication; then he plead no contest to petit theft in July 2012. The items were recovered in July. He just got off probation this month. Yesterday, he went to Target to purchase ink cartlidges. He had 2 but put the other 1 back on the shelf. While at the store he went in his pocket to check his cell phone. After he paid for the cartlidge, a security guard with no formal gear & didn't identify himself as "Security for the store" ask him for the ink. He told them he paid for his ink & the guard stated that they had him on camera going into his pocket. He told the guard to search him for the items. The police came to search him, his car, & found nothing. The police said they still had to cite him b/c store wanted to. He is actually innocent this time.

The police took his statement and said that he needed to go to trial. How can someone be falsely accused of theft when no items were recovered plus he paid for his item. No other employees came out with the security guard & let him leave the store. He then went to Home Depot when he noticed police by his car. The police searched his WHOLE body and then ask to search the car. We really need to fight this but worried if he will be given a FAIR shot considering his past 2 convictions. We are curious how much time he could serve if falsely convicted. This is the one time he was walking the straight & narrow. He's learned his lesson. What type of jail time could he face & fines? The first petit theft was less than $20 (he did the diversion program) & his second one was $110 (probation 6 months, community service) and this one which HE DID NOT do was for $20. He is INNOCENT & we want to fight this!! We just not sure if we can afford an expensive attorney.

Attorney Answers 9

  1. Sure he can be convicted. Innocent people do get convicted in this country everyday. I would advise getting an attorney immediately. Stores like Target often have video tapes. These tapes are often recorded over in about 1-2 weeks, so if the tape can exonerate him-he needs to get them to save the tape immediately.

  2. Hire an attorney asap. Here's a couple things to keep in mind regarding Target. Most of their stores have video cameras at the cash registers. I've had several videos recovered from Target security cameras. So, when you hire an attorney, make sure the first thing done is to contact Target so that they may "preserve" that evidence. Often, your attorney will send Target's legal department a "Notice to Preserve Evidence"--putting Target on notice that they should NOT destroy the video. Also, the attorney should ask the court's permission to obtain the computer sales transaction records for the time/date of this incident. Those records will show that, moments before your fiance was arrested, those exact same ink cartridges were purchased. This will help verify your fiance's story (video, of course, would be better, but the sales data will be helpful as well).

    A trial may not be necessary in this case. Once the video tape is viewed, it should show your fiance paying for the items that they later claim he stole. Target's video is full color, it is typically of a quality that would enable you to see that, in fact, he paid for certain items. The video, along with the sales data from the cash registers, and this case may not make it to a jury.

  3. The answer to your question is difficult to answer because this is the type of question that your fiance needs to discuss with an attorney who has studied the case in extreme detail and given all the facts special consideration. There are always risks of going to trial because all jurors must unanimously agree - and since they discuss the case in private, there is no way to know how they think about the case. If your fiancé has not yet consulted an attorney - he should do so as soon as possible.

    My answers on are intended to help clarify the legal process in your situation to the extent possible on this website. Criminal law can be very complicated and very serious. Every case is different and my answers are not intended to serve as legal advice unless so stated. If you have been charged with a crime you could be placed on probation or face incarceration. Please contact an attorney if you think you need legal advice in a criminal matter.

  4. All cases begin with the presumption of innocence and should be prepared for trial unless there arises a reason to avoid trial. Good luck.

  5. Hire a criminal defense attorney that practices in your area ASAP!

    I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..

  6. In Florida. Hired Petit Heft can be harmed as a hired degree felony. However, with the information you provided he only has one conviction. Completing diversion IS NOT a conviction. So it may be harmed as a PT second, which is a first degree misdemeanor. I would hire a criminal defense attorney in Orlando to deal with his and potentially speak with the prosecution ASAP.

  7. You need to hire an attorney as soon as you can. This case needs to be handled with the prosecutor before formal charges are filed.

  8. There are always risks when one goes to trial. It is hard to predict what a jury will do. He needs a good attorney and a little luck!!!!

  9. Fighting the case at trial is certainly an option for your fiance. But you need to make sure you hire an attorney who knows and understands criminal law before you get to that point. This may be a case that gets resolved in your fiance's favor without having to go to trial to risk prison time (if filed as a felony).

    The State can enhance a third petit theft charge to a felony if they can "prove up" certain things, such as whether the prior thefts were counseled by a lawyer, or if not, whether the right to a lawyer was validly waived, etc...The state cannot, however, use a prior petit theft case that was dismissed through a diversion program to enhance a subsequent petit theft to a felony. That will need to be looked at in this case because you mentioned a diverson program was entered in one of the priors. If the state cannot prove up the priors, they may file a misdemeanor theft rather than the felony. The third degree felony carries a five year maximum and the misdemeanor will likely carry a 1 year maximum (if the state can prove up at least one prior theft conviction).

    The hope here is to avoid the state even filing the charge entirely. That's why hiring an attorney at this stage is so important.

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