Defenses to Petit (Petty) Theft in Florida

July 18, 2025 Don Pumphrey, Jr. Criminal Defense, Theft/Property Crimes Social Share

In Florida, petit (petty) theft is a serious criminal offense. Under Fla. Stat. Section 812.014(2)(e) petit theft is defined as the taking of property valued at less than $750 with intent to permanently or temporarily deprive the owner of their right to the property.

Petty theft is a first-degree misdemeanor (punishable by up to 1 year in jail and a $1,000 fine). If the property is worth less than $100, petty theft is a second-degree misdemeanor (punishable by up to 60 days in jail and a $500 fine).

Important: Fla. Stat. Section 812.014(3)(c) specifies that if a defendant has two or more prior theft convictions, petit theft can be charged as a third-degree felony (punishable by up to 5 years in prison and a $5,000 fine).

Though being charged with petit theft can be extremely stressful, various legal defenses exist if someone is accused of this crime – one or more of which may be applicable in a given case. This blog will explore defenses to petit theft in Florida.

For someone to be proven guilty of petit theft, the State must establish the following beyond a reasonable doubt:

• The defendant knowingly and unlawfully obtained or used, or endeavored to obtain or use, the property of another
• The defendant had the intent to either permanently or temporarily deprive the person of a right to the property or benefit from it
• The property was worth under $750 (over $750 or a firearm of any value is grand theft)

Note: Under Fla. Stat. Section 812.012, someone “obtains or uses” property if they take, transfer or exercise control over it. The statute also defines “deprive” as to withhold property temporarily or permanently. “Property” is considered any tangible or intangible item with value.

For first-degree misdemeanor petit theft, the State must affirmatively prove as an element of the crime that the value of the property at the time of the taking was $100 or more. Otherwise, the charge must be reduced to second-degree misdemeanor petit theft as a matter of law. Rosario–Santos v. State, 223 So.3d 306 (Fla. 4th DCA 2017). 

Various legally valid defenses exist to an allegation of petit theft. One of these is lack of intent to temporarily or permanently deprive the alleged victim of the property. This could occur if the alleged theft was the result of a mistake, accident, or misunderstanding in situations such as:

• A young mother at Walmart puts a few small items in her purse before scanning them as she is juggling her baby – but she forgets she did so and attempts to leave the store with the items that hadn’t been paid for yet.
• Two coworkers are assigned identical laptops – one of the coworkers grabs the other’s laptop and takes it home, thinking it’s theirs.

In each of these situations, credible testimony and other evidence that shows no concealment or evasiveness on the part of the defendant can be a potent defense if they are charged with petit theft. 

Another defense is claim of right or ownership. This defense is applicable when the defendant either owned the allegedly “thieved” property or reasonably believed they had a right to possess it at the time of the alleged offense. This may apply in situations such as:

• Mark moves out a small TV from a bedroom after eight years of living in a townhome, believing the TV was a moving-in gift. The landlord, Joe, calls the police and claims the TV was never for Mark. Mark is charged with petit theft, but if he honestly believed he had ownership of the TV, this defeats a petit theft charge.
• James takes home a $50 speaker that had loaned to a friend, Liam, after an argument. Liam claims it was a gift and calls the police. If James is charged with petit theft, his good-faith belief in continued ownership of the speaker is a valid (and strong) defense. 

An additional defense to an allegation of petit theft is consent. If the defendant alleges that they received consent from the property owner to temporarily or permanently possess it and provides evidence or testimony to this effect, the State must rebut a consent defense beyond a reasonable doubt for the defendant to be found guilty.

An example may include if someone borrows their neighbor’s lawnmower overnight to finish trimming their grass after their neighbor gave them permission to use the mower “anytime.” If the borrower is charged with petit theft, consent becomes a relevant defense – especially if the permission was actually understood to always apply (“anytime” was not just a figure of speech).

Though it is not a complete defense, a key component of a petit theft defense may be disputing the value of the property. As Rosario–Santos v. State notes, the State must establish the allegedly thieved property was worth $100 or more at the time it was taken. 

If this is not proven beyond a reasonable doubt and it is in dispute, this key fact can make the difference between first-degree (up to 1 year in jail) and second-degree (up to 60 days in jail) misdemeanor petit theft. 

Another defense to a petit theft charge is abandonment. If the defendant had a good-faith belief at the time that the property was allegedly taken that it did not have an owner (nobody else had a right to the property), it is not considered theft. Morissette v. United States, 342 U.S. 246 (1952)

An additional defense to a petit theft charge is alibi or mistaken identity. If someone was not in the location where the alleged theft occurred at the time, or if the only corroborating evidence for the defendant allegedly committing the theft is unreliable (such as grainy camera footage or dated eyewitness accounts), this can undermine the charge and pave the way for an alibi or mistaken identity defense. 

Yet another potential defense to petit theft is entrapment. There are two types of entrapment defenses, either of which may be used depending on the facts of a case:

• Objective entrapment: Law enforcement conduct is so egregious, it violates the due process rights of the defendant and contaminates the legal proceedings against them. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019). 
• Subjective entrapment: If a subjective entrapment defense is used (Fla. Stat. Section 777.201), the defense must first prove by a preponderance of the evidence that the State induced the defendant to commit the offense. If inducement is established, the State must prove beyond a reasonable doubt that the defendant was predisposed to act criminally. Munoz v. State, 629 So. 2d 90 (Fla. 1993). If the State cannot do so, the charge fails on entrapment grounds.

Hypothetical cases in which an entrapment defense may be the most effective in fighting a petit theft charge may include:

• An undercover officer leans against a tree and places a cell phone on a nearby bench. Eric comes by and asks if the phone belongs to the undercover officer. The officer says “no, and it’s been there for a while, so I’d grab it if I were you.” Eric does and is arrested for petit theft.
• An undercover officer acts as a store employee and tells a reluctant teen to “just take” a small item of clothing because “everyone does it.” The teen resists at first but eventually attempts to put it in his pocket. The officer then arrests the teen for petit theft.

Though there are many lawful defenses to a charge of petit theft in Florida, certain others are not considered legally valid (“non-defenses”). These include:

• “I was going to give it back”: Even if the deprivation of the property from the owner is temporary, it still qualifies as theft under Florida law.
• “The item was cheap/old”: This may be relevant to assessing its monetary value, but not relevant to the actual charge of petit theft.
• “I didn’t walk out of the store yet”: If someone attempts the theft (via hiding the item, passing through the final point of sale, not scanning at self-checkout, etc.) but is caught, this is still petit theft.
• “I was drunk/high”: Voluntary intoxication is not a defense (Fla. Stat. Section 775.051).
• “The victim didn’t notice/mind”: Consent must be prior, not simply assumed by their inaction 
• “I was going to pay for it later”: If the intent at the time of the alleged taking was not to pay, this is still petit theft – even if someone offers to pay once caught.

In sum, petit theft is a serious misdemeanor offense in Florida. It is punishable as a first-degree misdemeanor (up to 1 year in jail, 1 year probation and a $1,000 fine) if the property is worth between $100 and $750, and a second-degree misdemeanor (up to 60 days in jail and a $500 fine) if the property is worth below $100.

Though a petit theft charge can be scary, various lawful defenses exist in Florida. These include consent of the owner, claim of right/ownership, lack of intent to deprive the owner (such as the defendant thinking it was their property), abandonment, alibi, entrapment, and more. 

If someone is concerned about a petit theft case, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to incarceration and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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