Georgia law creates many different descriptions of crimes regarding theft. These offenses can be classified as misdemeanors or felonies, depending upon the value of the property at issue. The circumstances of the offense (such as whether a firearm was involved) can also affect the severity of the penalty. Penalties for theft crimes can vary greatly. It is therefore important for defendants charged with such an offense to seek the advice of an experienced Georgia criminal defense attorney. The litigation lawyers at Banks, Stubbs and McFarland can help raise evidentiary objections, engage in plea negotiations, present an effective defense at trial (if necessary), and access other legal avenues to mitigate the consequences of a theft conviction.
How Theft is Defined By Georgia Law
The Official Code of Georgia recognizes many different theft offenses. One can commit theft by taking (see Section 16-8-2). This covers any general theft in which the defendant takes another person’s property by any means, with the intent of permanently depriving the rightful owner of that property.
Theft can also be committed by deception if the defendant uses “deceitful means or artful practices” in order to deprive another person of his or her property. (See Section 16-8-3.)
Theft can also be committed when a defendant is lawfully in possession of property, but then converts it for his or her own use. A common example is a rental car which is lawfully leased, but then not returned pursuant to the rental agreement. This “theft by conversion” is prohibited under Section 16-8-4.
A person can also steal services. Section 16-8-5 of Georgia law defines this crime as obtaining services, accommodations, entertainment, or the use of personal property with the intent to avoid payment. For example, hiring a limo or renting a hotel room with a false credit card, or the skipping out on the bill could be considered theft.
Even lost or mislaid property can be the subject of theft. Under Section 16-8-6, this occurs when a person finds lost or mislaid property and appropriates it for his or her own use without first taking reasonable measures to restore the property to its owner.
As you can see, there are many different types of theft offenses. These offenses carry a wide variety of fines, sentences, and other criminal penalties. Because of this, a defense attorney has greater opportunities to negotiate plea agreements in theft cases. A defendant can agree to plead guilty to lesser theft offenses with lighter penalties. Lower fines, less jail time, and other conditions can potentially be negotiated with a plea agreement. A defense attorney can also use these narrow definitions of theft to challenge a prosecutor’s decision to file charges (or to raise evidentiary objections before trial). All of these actions can lead to a better case outcome for a defendant charged with theft.
The Difference Between Breaking and Entering and Burglary
Breaking and entering are most commonly associated with the crime of burglary. With the traditional common law, a person committed the crime of burglary when he or she used physical force to gain entry into the dwelling under the cover of darkness with the intent to commit a felony therein.
This is a rather narrow definition. It required (a) that the defendant use actual physical force to enter the building, (b) the building the defendant entered must have been an occupied home, and (c) that the incident occurs at night. Over the years, the definition of burglary has been expanded by various state courts and legislatures to the point where “breaking” and entering is usually no longer required.
Burglary in Georgia
There are two degrees of burglary in Georgia:
- A person commits the offense of first-degree burglary when he or she enters or remains in an occupied, unoccupied, or vacant dwelling house of another without authority and with the intent to commit a felony or theft therein.
- A person commits the offense of second-degree burglary when he or she enters any occupied, unoccupied, or vacant building of another without authority and with the intent to commit a felony or theft therein.
First, notice that only “entering or remaining” is required. “Breaking” and entering is not a requirement of either first or second-degree burglary. Thus, even entering a building through an open door or remaining in a building after the owner has asked you to leave is considered burglary, so long as you do either with the intent to commit a felony or theft in the building.
Second, Georgia’s definition of burglary has been expanded beyond the common law definition, which was restricted to dwelling houses. In Georgia, entering any building without authority with the intent to commit a felony or theft is considered second-degree burglary, while entering a residential dwelling for the same purposes is first-degree burglary.
Finally, notice that the law no longer requires that the incident takes place at night; burglary can now occur at any time.
Although most people think of “burglary” as something akin to the common law definition that connects the crime to theft, this is only a partially accurate understanding. For example, let’s say that a disgruntled ex-husband goes to the new home of his ex-wife, climbs through an open window, and violently assaults her. The ex-husband would be guilty of burglary (and family violence) even though he did not break into his ex-wife’s house, nor did he steal anything. Thus, burglary encompasses a much wider range of behavior than what is commonly believed.
In conclusion, breaking and entering requires entry by some form or force of destruction while burglary does not. Both are crimes typically connected to theft but are tied to other areas of criminal law, as well.
Theft crimes as well as burglary and breaking and entering can be confusing charges to navigate. Handling these cases without expert legal counsel could result in harsh punishments that could have been avoided or reduced. Contact the expert criminal defense attorneys at Banks, Stubbs, and McFarland to learn the best defenses to your arrest.