Claims of right in theft and robbery prosecutions.

• Author: Sanders, Richard J.
• Position: Florida

Although often spoken of as a defense, claims of right are not affirmative defenses.

In theft(1) 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...