Is It Still Theft If You Return the Item in Florida?

September 5, 2025 Don Pumphrey, Jr. Criminal Defense, Theft/Property Crimes Social Share

In Florida, theft (Fla. Stat. 812.012) occurs when someone knowingly obtains, uses, or endeavors to obtain or use the property of another. This is done with the intent to deprive the rightful owner of the property, or misappropriate the property for the defendant’s use or the use of another party not entitled to it.

A common question asked in these cases is if theft is still committed even if someone returns the property. The answer is yes. Regardless of if someone returns allegedly stolen property, theft is committed if at the time of the taking, the intent was to temporarily or permanently deprive the rightful owner of the property.

For theft to occur in Florida, the following elements must all be proven beyond a reasonable doubt:

• The defendant knowingly obtained or used, or endeavored to obtain or use the property of another
• The item belonged to someone else (property of another)
• The person either intended to permanently or temporarily deprive the owner of their right to the property (or a benefit from it), or intended to appropriate the property for their own use or use of someone not entitled to it 

Theft has a very complicated sentencing scheme in Florida, but this largely depends on the value of the item(s) allegedly stolen. The penalties for theft in Florida are as follows:

• Second-degree misdemeanor (up to 60 days in jail and a $500 fine): Property worth less than $100
• First-degree misdemeanor (up to 1 year in jail and a $1,000 fine): Property worth between $100 and $750, property worth under $40 but stolen from a home or enclosed area (e.g. a porch), property worth <$100 but defendant has a prior theft conviction
• Third-degree felony (up to 5 years in prison and a $5,000 fine): Firearm or automobile of any value, property worth less than $750 but defendant has two or more prior theft convictions, property worth $750 and $20,000 if no prior convictions, theft from construction sites, theft of controlled substances, etc.
• Second-degree felony (up to 15 years in prison and a $10,000 fine): Property worth between $20,000 and $100,000, property worth between $5,000 and $20,000 during an aggravated riot, retail theft of items aggregating to $3,000 or more within a 120-day period/20 or more items, theft by a group of five or more using social media to solicit participants
• First-degree felony (up to 30 years in prison and a $10,000 fine): Property worth over $100,000, theft of cargo over $50,000 if engaged in commerce, theft of law enforcement semitrailer, use of motor vehicle as instrument of theft causing >$1,000 in damage (e.g. “smash and grabs”), riot-related theft >$20,000

When someone reads the legal definition of theft in Florida for the first time, a typical reaction is surprise about how broad it truly is. This is because theft does not only criminalize successfully stealing property, but even “endeavoring” to do so. Essentially, attempted theft is treated the same as completed theft in Florida. Haslem v. State, 391 So.2d 389 (Fla. 2d. DCA 1980)

Haslem held that hiding goods around a store (such as in various bags, canisters, etc.) with the intent to steal them can lead to a conviction under Florida’s theft statute even if goods were never actually removed from the store. This is a major development because it is widely believed that a good actually has to be physically taken from its owner before someone can be charged.

Even if someone gives an item back after taking the item or before actually removing it from the custody of its rightful owner (e.g. getting caught trying to swipe an item at self-checkout), this can still be considered theft in Florida. Again, Florida law focuses not on the ultimate outcome, but on the intent of the defendant at the time of the taking or attempted taking.

Some examples of theft even if someone “gives back” the item may include:

• T swipes a handbag from P and drives home. Feeling guilty, T finds P at her house and gives back the bag. T is still guilty of theft, as he intentionally took the back with the intent of depriving P of it, either temporarily or permanently.
• G is in the self-checkout line at Walmart. Rather than scanning a t-shirt he wishes to buy, he places it in a bag and attempts to leave. The alarm goes off and G apologizes and immediately hands back the shirt. G can still be charged with theft.
• R is playing a video game with V. In a fit of anger, R takes V’s video game console to his car without V’s permission and drives away. Ten minutes later, he comes back voluntarily and returns the console. R is still guilty of theft.

It is important to note that theft may also occur via fraud, misrepresentation, or unauthorized use of property. Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982).

This may apply in any of the following cases:

• G takes H’s car out for a joyride, knowing H did not want him driving it. Even if G “gives back” the car at the end of the joyride, theft still occurs.
• S approaches F, who has dementia, and convinces F that her purse actually belongs to S. F allows S to take the purse, and she does. Even if F returns the purse, it is still theft.
• R tricks a cashier by returning an old, damaged blender but claiming it is a recent purchase. The cashier refunds money that R was not entitled to. Even if R confesses this was a misrepresentation to the cashier and takes back the blender, R has committed the offense of theft.

Though Florida law still classifies it as theft if someone gives back the property, this can positively impact someone’s sentencing for theft by reducing the likelihood of harsh penalties at trial. If stolen property is voluntarily given back to its rightful owner, courts are permitted to use this as a mitigating factor in sentencing. Williams v. State, 340 So.2d 113 (Fla. 1976)

Despite the fact that giving back property is not a defense to theft in Florida, various lawful defenses do exist, one or more of which may be useful depending on the facts of a case. They include:

• Lack of intent to commit theft (e.g. picking up a nearby bag that looked like yours thinking it belonged to you)
• Claim of genuine ownership (e.g. driving a jointly-owned car after an argument and partner calls the police)
• Consent of the owner to use the property (if not procured by fraud, misrepresentation, etc.)
• Procedural defenses (e.g. motions to suppress post-arrest statements, motion to suppress illegally obtained evidence, etc.)
• Entrapment (if law enforcement was involved)
• Value challenges: Not a total defense, but a partial defense. The State must prove the value of the property beyond a reasonable doubt. If this is not established, a defendant can only be convicted of the lowest level of theft (second-degree misdemeanor petit theft), even if the property was allegedly worth much more. C.G. v. State, 123 So.3d 680 (Fla. 5th DCA 2013)
• Necessity, duress or coercion
• Involuntary intoxication (but not voluntary intoxication, per Fla. Stat. 775.051)

So, is it theft even if someone gives the item back? The answer is yes – because theft occurs in the moment of the illegal taking with intent to deprive. Even if the property is only “thieved” for a second and then is returned to its owner, theft has still occurred.

However, the duration of the taking may influence the severity of sentencing for theft. Florida’s Supreme Court has ruled that even though giving property back after someone stole or attempted to steal it does not defeat a theft allegation, it can be used as a mitigating factor to reduce the severity of a defendant’s sentence.

If someone is arrested and formally charged in Florida in a case involving burglary or theft, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term 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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