Written by attorney Patrick E. Stegall

Memphis Criminal Defense Lawyer Explains How to Keep a Shoplifting Charge Off Your Record

In Tennessee, shoplifting is formally called Theft of Property $500 or less. Theft in Tennessee is graded by dollar amounts--$500, $1000, $10,000, and anything over $10,000. Theft $500 or less is a Class A misdemeanor, punishable up to 11 months and 29 days in jail.

If a client is charged with shoplifting it is of the highest importance that they keep the charge off their record. In Tennessee, there are generally two ways of doing this. The first is the process of judicial diversion. Judicial diversion means going on probation for the entire length of the sentence—11 months and 29 days. During that time the client will have to pay monthly fees, as well as court costs and expungment fees, and probably complete community service and/or classes. The one condition of diversion is that the client must have a clean record. They cannot have any prior felonies or class A misdemeanors (such as DUI or drug possession), and they cannot have used diversion before. It’s for first-time offenders only. Diversion is an excellent way to keep a serious charge off your record, but when it comes to shoplifting cases in Tennessee there is sometimes an easier, less expensive way.

Merchant restitution, or merchant diversion as it is sometimes called, can often be used in shoplifting cases to dispose of the charge without probation or a permanent conviction. This process can be used if the merchandise is recovered without damage and the store agrees to accept restitution in lieu of prosecution. It’s kind of an oxymoron that the store takes restitution when the merchandise is recovered without damage, since the concept of restitution is to pay for property that has actually been damaged, but that’s the way it works. If the store and the prosecutor’s office agree to this, the client can pay the store the required amount, get a letter in return stating payment has been made and that the store will not be pressing charges, then the case will be dismissed. Usually the client will have to pay court costs at the time of the dismissal.

Merchant restitution is a much better way to handle a Tennessee shoplifting charge than judicial diversion, because 1) the client doesn’t go on probation for a year, 2) they don’t pay hundreds of dollars in court fees, and 3) they don’t plead guilty. A guilty plea is mandatory for judicial diversion. This is especially important for clients who are not U.S citizens, such as permanent residents or visa holders, because a guilty plea could be fatal to their status in the United States. But under the restitution process, the client simply pays the store, brings back proof of payment to court, pays costs, and the charge is removed from their record.

The one catch with restitution is that not all stores will participate, and not all prosecutors will accept it. For instance, WalMart doesn’t do it. If the store where the shoplifting occurred was WalMart, they are going to have to go on diversion to get it removed. I believe it is WalMart’s policy nationwide to not accept restitution in shoplifting cases. Also, the prosecutor’s office has to be willing to go along with it. Where I practice in Memphis, prosecutors will usually agree to it but they may not in other jurisdictions. However, I have helped numerous clients through the restitution process, and as a Memphis criminal defense lawyer it's always my first line of defense.

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