Dealing in stolen property, grand theft, and ineffective assistance of counsel.

• Author: Via, George C.

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. [section]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. [section]812.025 and Hall v. State, 826 So. 2d 268, 271 (Fla. 2002). Section 812.025 (9) 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...