S & R Law Firm
The most common theft charge in Virginia is petit larceny. Larceny is defined in Virginia as the wrongful taking of the goods of another without the owner's consent and with the intention to permanently deprive the owner of possession of the goods.
The most common type of petit larceny is basic shoplifting, although there are other ways in which a person might be charged, and other types of criminal charges that might be brought in some instances. There is also another law that deals specifically with shoplifting, but often this offense is charged as simple petit larceny.
Following is a brief description of the various forms of petit larceny, the type of punishment one might face if convicted of petit larceny, and some defenses apply in certain cases.Types of Petit Larceny
Larceny from the Person: Any theft from the person of another where the value is less than $5 is petit larceny; any such theft where the value is more than $5 is a felony charge of grand larceny (see the article on grand larceny for a full description of this offense). The most common example of this offense is pick-pocketing.
Petit Larceny based on Value: This offense is charged under Virginia code section 18.2-96 and is basically just a theft crime for anything valued at $1,000 or less. The most common form of this offense is shoplifting.Punishment
Punishment on a conviction for petit larceny can vary greatly depending on a huge number of factors. Petit larceny is a class one misdemeanor with a maximum punishment of 12 months in jail and $2500. Only in a tiny fraction cases would a judge sentence a person to a period of several months or more in jail, but short jail sentences are quite common, even for minor or first offense cases.
One important factor that prosecutors and judges consider is the criminal record of the accused. If a person has been convicted of a larceny crime before, the sentence could be much more severe. Judges will sometimes sentence a person to just a fine for a first offense, but a week or more in jail on a second. If a person has been convicted of petit larceny two times before, they can be charged with grand larceny, for which the maximum punishment is up to 10 years in prison, so prior convictions are very important. Judges may also consider prior convictions for other offenses as well, although these will usually be considered less important than prior theft crimes.
Another detail that is often important is where the offense took place. While the legal system tries to make punishment more or less consistent throughout the Commonwealth, there are still variations between jurisdictions. In some counties, judges will routinely give at least one day in jail for a conviction of petit larceny, while in other areas simple fines are more common. For this reason, having an attorney who practices frequently in a particular court is very important.
Starting July 1, 2020, Virginia has given judges the discretion to dismiss a petit larceny or a grand larceny after a period of probation through Va Code Ann. §19.2-303.2. In order to have your case dismissed under this code section your current charge must be your first offense and you must not have any prior felony convictions. You may wonder at this point why you would need a lawyer.
This code section does not guarantee that a judge will dismiss your case if it is your first offense, an attorney will need to argue for that result. Additionally, if a charge is dismissed through this code section it is not eligible for an expungement, meaning that the dismissed charge will stay on your record. In most cases this will not cause an issue in the future, however, your attorney will be able to give you advise on whether another resolution is better for you.
An attorney will need to argue why this option is an appropriate resolution for your case. Judges do not normally dismiss cases in this way often. An attorney familiar with the judges in your court will be able to advise you on the things you can do before court to show the judge that you should be placed on probation for a dismissal.
If the judge does decide that this is an appropriate resolution for your case then there will need to be a finding of guilt. This includes either you pleading guilty or the judge hearing facts from the officer or prosecutor and determining that there is enough to find you guilty. The judge will not formally find you guilty but will instead continue the case for a period of probation. While on probation the judge will require you to not receive any new charges may additional requirements like a theft class, community service, or paying money owed to the store or person stollen from.
If you do not get any new charges during your probationary period and complete everything that the judge requires, then your case will be dismissed. However, if you do not complete everything as instructed, the judge can use your guilty plea to find you guilty at the end of probation.
In addition to the criminal penalties such as fines and jail time, a separate law allows a store to collect a civil judgement against a person who is convicted of shoplifting. Under Va. Code Ann. § 8.01-44.4(A), a merchant may collect a judgment of two times the unpaid retail value of the merchandise, with a minimum of $50 and a maximum of $350 (as long as all merchandise was recovered). This means that if you are convicted of petit larceny, you will probably get a letter a short time later from a lawyer demanding you pay the store several hundred dollars. If you refuse, the lawyer for the store can take you to court and ask the judge to order you to pay those civil penalties and even an additional $150 for the costs of the lawyer.Defenses
Some of the defenses available are found in the basic definition of petit larceny. For example, there has to be an actual “taking” of something. So, for example, if a woman is stopped in a store with something in her purse and then charged for petit larceny, a prosecutor must prove that she intended to take the item out of the store and keep it. She might argue, for instance, that she intended to pay for it and simply put it in her purse to keep her hands free to continue shopping. This success of this sort of defense would depend on all the other details of the case, but it illustrates how a prosecutor must prove several separate things in a case to win.
Another element that must be proved is that the person charged intended to permanently deprive the rightful owner of possession. So, for example, where one person “borrows” an item without permission, but intends on returning the item at some point, he is not guilty of larceny.
In addition to specific legal defenses, some courts have created so-called “first offender programs” that allow a person with a clean record to enter into a program to do community service and take classes. Where the program is successfully completed, the judge will dismiss the charge without a conviction. There are many factors which determine whether or not the court offers such a program, if a person is eligible, and if the program is the best strategy in a given case.Related Laws
- Va. Code Ann. § 18.2-97 - larceny of certain animals and poultry
- Va. Code Ann. § 18.2-98 - larceny of bank notes and checks
- Va. Code Ann. § 18.2-102 - unauthorized use of an animal, aircraft, vehicle, or boat
- Va. Code Ann. § 18.2-103 - concealing or taking possession of merchandise (shoplifting)
- Va. Code Ann. § 18.2-107 - theft or destruction of public records
- Va. Code Ann. § 18.2-108 - receiving stolen goods
- Va. Code Ann. § 18.2-111 - embezzlement