An appellant was charged in an Information captioned as "Information for Retail Theft." Under the body of the information, it was charged that appellant did unlawfully take possession of, or carry away, merchandise of a value of $100 or more, with the intent to deprive the owner of the full retail value of said property; contrary to the Florida Statutes.
At trial, it was apparent that appellant, appellee, State of Florida and the court considered that appellant was charged with and tried for grand theft of the second degree. Appellant consented to the verdict form that had three options for the jury: guilty of grand theft as charged, guilty of petit theft as included and not guilty. The jury selected the option of guilty of grand theft as charged.
At the charge conference, the appellant requested for a specific instruction as to the definition of market value, and urged upon the trial judge the classic definition of what a willing seller was willing to accept and a willing buyer was willing to pay when neither was compelled to sell or buy. However, the appellee successfully urged upon the trial judge the definition of retail theft as contained in the Standard Jury Instructions in Misdemeanor Cases. The trial judge agreed with the appellee specifically stating that they were dealing with market value. On that day, as the jury returned its verdict, the trial judge entered a judgment which adjudicated appellant guilty of Retail Theft with the words Grand Theft entered parenthetically thereunder, and citing 812.014/812.015 as the Offense Statute Number/s. Sentencing was thereafter continued pending completion of the pre-sentence investigation. On the day of the sentencing, inexplicably, another judgment was entered which adjudicated the appellant guilty of Retail Theft but this second judgment stated only retail theft as the crime for which the appellant was convicted. While that judgment made no reference to Grand Theft, it cited as the Offense Statute Number/s only section 812.014(2)(b)(1).
In the landmark case of Tobe in 1983, the Third District Court of Appeals held that under section 812.015, retail theft of merchandise where its sale value is alleged and proved is a second degree misdemeanor, separate and apart from the theft under section 812.014. An instruction on the said offense can be found in The Standard Jury Instructions in Misdemeanor Cases. Here, however, the court cannot conclude the same. While section 812.015(1)(d) defined retail theft, it does not provide for any specific punishment for retail theft, nor does it designate a felony or a misdemeanor. Punishment with regard to theft is only mentioned in section 812.015(2), and that subsection is an enhancement provision that refers to a second or subsequent conviction for petit theft involving merchandise. Indeed, Section 812.014(2)(c) provides that theft of any property not specified in section 812.014(2)(a) or (b), is petit theft and a misdemeanor of the second degree. However, theft of merchandise offered for sale in a retail establishment, when the sale price is $100 or more, is included in section 812.014(2)(a) or (b). The court cannot perceive when the "value of merchandise", as defined in section 812.015(1)(c), would ever be less than the market value of the property at the time and place of the offense, as value is specifically defined in section 812.012(9)(a). Thus, if the sale price of merchandise is $100 or more, the theft of that merchandise is clearly an offense under section 812.014(2)(a) or (b), and if less than $100, it is petit theft under section 812.014(2)(c). An analysis of the legislative history of what are now sections 812.014 and 812.015 of the Florida Statutes (1981) would show that there is no separate crime of retail theft of merchandise where value is alleged and proved.
Sometime in 1973, larceny, and other related crimes, was the subject of chapter 811 of the Florida Statutes (1973). The criminal offense then, commonly known as shoplifting, was a specific criminal offense defined in subsection 811.021(1)(d) of the general larceny statute, or section 811.021 of the Florida Statutes (1973). Section 811.022 of the Florida Statutes (1973) was entitled "Shoplifting; penalties; prima facie evidence of concealment; detention and arrest; exemption from false arrest." Nonetheless, irrespective of what the title stated, section 811.022 of the Florida Statutes (1973) merely set forth the arrest procedures and exemptions from liability therefrom and, as provided for in its subsection, 811.021(1)(d), when there was probable cause for arresting a person for the offense of shoplifting. In section 40, chapter 74-383, Laws of Florida (1974), the legislature redefined larceny and transferred the larceny statute from section 811.021 to section 812.021. Shoplifting continued to be defined as a specific offense in subsection 812.021(1)(d). However, section 65, chapter 74-383 transferred section 811.022, which dealt with the arrest procedures in a shoplifting case, to chapter 901 being the chapter of Florida Statutes entitled "Arrests." In 1975, the legislature, in chapter 75-144 thereof, changed the title of section 901.34 from shoplifting to retail theft, and added a penalty for resisting arrest. In 1977, the legislature enacted chapter 77-342 of the Laws of Florida (1977) which, among other things, repealed section 812.021, the general larceny statute, and enacted in its place the new theft statute which is now section 812.014 of the Florida Statutes (1983). In 1978, by chapter 78-348, the legislature again amended section 812.014 of the Florida Statutes (1977) to add "knowingly" to the definition of theft. At the same time, the retail theft arrest statute, section 901.34, was repealed and re-enacted with amendments as section 812.015. This new section still did not create a crime of retail theft of merchandise separate from the theft provided for in section 812.014. While it is true that it did enhance the penalties on a second or subsequent conviction for petit theft and provided more detailed arrest procedures, it created no new crime of retail theft of merchandise where its sale value is alleged and proved.
In conclusion, the trial judge's statement that he did not think they were dealing with market value was not entirely correct. Nonetheless, the instructions he gave were sufficiently free from error which do not to require a reversal. While the trial judge did instruct the jury that the appellant was accused of retail theft, he nevertheless explained that the punishment for the crime of theft is greater depending upon the value of the property and proceeded to instruct on grand theft and petit theft. It must be noted that the trail judge then proceeded to instruct the jury that value of merchandise means the sale price of the merchandise at the time it was stolen. That was correct. Instead of creating a separate crime of retail theft of merchandise by enacting section 812.015, the legislature provided a standard by which the market value of property stolen from a retail establishment is determined. In all such cases, a jury's search for market value need not proceed beyond the determination of the sale price of the items stolen at the time of the theft. While the issue here has not been brought before the court’s attention, the people must know that a charge could be made under section 812.015 in regard to the taking or carrying away of merchandise, altering or removing a label or price tag, transferring merchandise from one container to another, removal of a shopping cart, or theft of farm produce where the element of value is not alleged, or if alleged, not proved. In that instance, the offense would be a misdemeanor of the second degree pursuant to section 812.014(2)(c).
Accordingly, the court affirmed the appellant's conviction and sentence but remanded the matter to have the judgment dated 29 March 1983 reflect that the crime for which the appellant was convicted was grand theft as provided in section 812.014.
To sum it all up, the appeal presented a rather confused record in regard to the exact crime with which the appellant was charged and convicted. In sorting through the confusion, the court must decide whether or not retail theft of merchandise as defined in section 812.015 of the Florida Statutes (1981) where value is alleged and proved is a separate criminal offense from theft as contemplated by section 812.014 of the Florida Statutes (1981). The court held that it is not and, in doing so, was in conflict with the landmark case of Tobe v. State.
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