What’s the Difference Between Misdemeanor and Felony Theft in Georgia?

The range of punishment is the biggest difference between a felony and a misdemeanor. Felony convictions usually mean incarceration in a state or federal prison. Misdemeanor convictions always mean a maximum twelve months’ confinement in the county jail. Probation is usually available in both felonies and misdemeanors.

Procedurally, these two categories of offenses are mostly the same. The burden of proof is identical. Pretrial procedure, such as motions to suppress, is generally the same as well. Judges can control pretrial procedures in their own courts, at least to some extent. Grand jury indictment is about the only major procedural difference. By law, grand juries only consider felony cases.

There is also an informal difference. Typically, prosecutors have a great deal of discretion in misdemeanors. There are some exceptions. For example, elected Cobb County prosecutors closely regulate plea negotiations in DWI matters.

The opposite is generally true in felony court. Prosecutors have considerable leeway in some matters, such as drug possession. In most cases, however, prosecutors only have limited discretion. The higher-ups normally dictate what kinds of deals prosecutors can offer.

What Constitutes Theft in Georgia?

Under Georgia law, misdemeanor and felony theft is the appropriation of property with intent to permanently deprive the owner of its full value. Let’s look at each of these elements in more detail.

Ordinarily, appropriation means physically taking property for one’s own use. But in this context, the A-word could mean manipulating property. Surreptitiously moving an item to the discount bin is one example. Swapping price tags is another example. These kinds of shoplifting were fairly common back in the day, but they are rare today.

Under-ringing schemes have largely replaced them. A patron checks out with a number of small items and a large item. The cashier, who is in on the scheme, rings up the smaller items but not the bigger one. Most large retailers do not verify receipts upon exit, especially overnight.

Failure to return rented property or overstaying a lease could also be appropriation for theft purposes. It is presumptively illegal to overstay a lease or retain leased property more than ten days passed the termination or due date.

As for the next element, there is a difference between completely deprive and permanently deprive. Shoplifters who move items to the discount rack pay something, but they do not pay full value.

This element gave rise to the myth that store security can only detain suspects once they leave the store. Technically, the crime is usually complete after the appropriation. But until the evildoer passes a register, it’s easier for a Marietta criminal defense attorney to argue that the appropriation was a mistake.

Ordinarily, owners are people with exclusive, or nearly exclusive, control over an item. But in this context, and owner is someone with a superior right to possession. For the sake of convenience, prosecutors often place the store security guard’s name in charging documents. Frequently, that name is the closest thing to an owner in a police report.

Marietta criminal defense attorneys can often delay these matters for several months, or even longer. As a result, when the judge calls the case for trial, the store security guard is normally gone. In court, the property’s owner must testify about the theft. Without such evidence, the case cannot go forward.

Theft Classifications and the Property’s Value

This method usually separates misdemeanors from felonies. In a nutshell, if the property’s value was less than $500, theft is a misdemeanor. Theft over $500 is a felony.

There are also different classifications of misdemeanors and felonies. Theft under $50 is technically an infraction instead of a misdemeanor. This offense is on par with a traffic ticket. Some law enforcement agencies in Cobb County do not respond to such complaints.

Nonviolent theft of a motor vehicle is probably the most common form of felony theft. Violent acts, such as carjacking, are covered under separate statutes.

If the property’s value is an issue, the owner’s uncorroborated testimony is often conclusive. A Marietta criminal defense attorney can challenge the owner’s testimony with circumstantial evidence, such as the value of similar products.

Special Circumstances Theft

Theft of certain items is always a felony, regardless of the property’s worth. This list of items includes the following:

• Breach of a Fiduciary Relationship: Embezzlement is always a felony. These matters run the gambit from taking cash out of the drawer to extremely complex Ponzi schemes.
• Anhydrous Ammonia: Ammonia without water is a common fertilizer ingredient. It’s also highly explosive. The Oklahoma City truck bomb was an ammonium nitrate bomb.
• Employee Theft of Any Government or Bank Property: These infractions include unauthorized use of government property and squatting in a foreclosed home.
• Telemarketing, Computer, or Home Repair Theft: This offense is related to breach of fiduciary relationship theft. These incidents could involve millions of dollars. They are still felonies, even if authorities nip them in the bud.
• Graverobbing and Theft of a Cemetery Decoration: This offense is pretty self-explanatory. When my ex-father-in-law married my ex-mother-in law, he took flowers from a grave to use in the wedding. That would’ve been a felony in Georgia.
• Theft of a Motor Vehicle Part Valued Over $100: In today’s automobiles, almost any part is worth at least $100. Authorities often prosecute automotive chop shops with this law.
• Theft of a Destructive Device, Explosive, or Firearm: Normally, the firearm or explosive must have been operable, or at least fireable, at the time of the alleged theft.

Special circumstance theft cases are a bit harder to handle. Prosecutors are often willing to reduce felony theft to misdemeanor theft, especially if a defense is available or the evidence is weak. But such reductions are not an option in special circumstance prosecutions. Prosecutors effectively have their hands tied in these situations, as mentioned above.

Regardless of the amount, theft could be charged as a felony or misdemeanor. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.