2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 8 - Offenses Involving Theft
Article 1 - Theft
§ 16-8-12. Penalties for Theft in Violation of Code Sections 16-8-2 Through 16-8-9

Universal Citation: GA Code § 16-8-12 (2020)
  1. A person convicted of a violation of Code Sections 16-8-2 through 16-8-9 shall be punished as for a misdemeanor except:
      1. If the property which was the subject of the theft exceeded $24,999.99 in value, by imprisonment for not less than two nor more than 20 years;
      2. If the property which was the subject of the theft was at least $5,000.00 in value but was less than $25,000.00 in value, by imprisonment for not less than one nor more than ten years and, in the discretion of the trial judge, as for a misdemeanor;
      3. If the property which was the subject of the theft was at least $1,500.01 in value but was less than $5,000.00 in value, by imprisonment for not less than one nor more than five years and, in the discretion of the trial judge, as for a misdemeanor; and
      4. If the defendant has two prior convictions for a violation of Code Sections 16-8-2 through 16-8-9, upon a third conviction or subsequent conviction, such defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years and, in the discretion of the trial judge, as for a misdemeanor;
    1. If the property was any amount of anhydrous ammonia, as defined in Code Section 16-11-111, by imprisonment for not less than one nor more than ten years, a fine not to exceed the amount provided by Code Section 17-10-8, or both;
    2. If the property was taken by a fiduciary in breach of a fiduciary obligation or by an officer or employee of a government or a financial institution in breach of his or her duties as such officer or employee, by imprisonment for not less than one nor more than 15 years, a fine not to exceed the amount provided by Code Section 17-10-8, or both;
    3. If the crime committed was a violation of Code Section 16-8-2 and if the property which was the subject of the theft was a memorial to the dead or any ornamentation, flower, tree, or shrub placed on, adjacent to, or within any enclosure of a memorial to the dead, by imprisonment for not less than one nor more than three years. Nothing in this paragraph shall be construed as to cause action taken by a cemetery, cemetery owner, lessee, trustee, church, religious or fraternal organization, corporation, civic organization, or club legitimately attempting to clean, maintain, care for, upgrade, or beautify a grave, gravesite, tomb, monument, gravestone, or other structure or thing placed or designed for a memorial of the dead to be a criminal act;
      1. The provisions of paragraph (1) of this subsection notwithstanding, if the theft or unlawful activity was committed in violation of subsection (b) of Code Section 10-1-393.5 or in violation of subsection (b) of Code Section 10-1-393.6 or while engaged in telemarketing conduct in violation of Chapter 5B of Title 10, by imprisonment for not less than one nor more than ten years or, in the discretion of the trial judge, as for a misdemeanor; provided, however, that any person who is convicted of a second or subsequent offense under this paragraph shall be punished by imprisonment for not less than one year nor more than 20 years.
      2. Subsequent offenses committed under this paragraph, including those which may have been committed after prior felony convictions unrelated to this paragraph, shall be punished as provided in Code Section 17-10-7;
      1. As used in this paragraph, the term:
        1. "Destructive device" means a destructive device as such term is defined by Code Section 16-7-80.
        2. "Explosive" means an explosive as such term is defined by Code Section 16-7-80.
        3. "Firearm" means any rifle, shotgun, pistol, or similar device which propels a projectile or projectiles through the energy of an explosive.
      2. If the property which was the subject of the theft offense was a destructive device, explosive, or firearm, by imprisonment for not less than one year nor more than ten years; provided, however, that upon a second or subsequent conviction, by imprisonment for not less than five nor more than ten years;
    4. If the property which was the subject of the theft is a grave marker, monument, or memorial to one or more deceased persons who served in the military service of this state, the United States of America or any of the states thereof, or the Confederate States of America or any of the states thereof, or a monument, plaque, marker, or memorial which is dedicated to, honors, or recounts the military service of any past or present military personnel of this state, the United States of America or any of the states thereof, or the Confederate States of America or any of the states thereof, and if such grave marker, monument, memorial, plaque, or marker is privately owned or located on privately owned land, by imprisonment for not less than one nor more than three years if the value of the property which was the subject of the theft is $1,000.00 or less, and by imprisonment for not less than three years and not more than five years if the value of the property which was the subject of the theft is more than $1,000.00;
    5. Reserved; or
    6. Notwithstanding the provisions of paragraph (1) of this subsection, if the property of the theft was regulated metal property, as such term is defined in Code Section 10-1-350, and the sum of the aggregate amount of such property, in its original and undamaged condition, plus any reasonable costs which are or would be incurred in the repair or the attempt to recover any property damaged in the theft or removal of such regulated metal property, exceeds $500.00, by imprisonment for not less than one nor more than five years, a fine of not more than $5,000.00, or both.
  2. Except as otherwise provided in paragraph (5) of subsection (a) of this Code section, any person who commits the offense of theft by deception when the property which was the subject of the theft exceeded $500.00 in value and the offense was committed against a person who is 65 years of age or older shall, upon conviction thereof, be punished by imprisonment for not less than five nor more than ten years.
  3. Where a violation of Code Sections 16-8-2 through 16-8-9 involves the theft of a growing or otherwise unharvested commercial agricultural product which is being grown or produced as a crop, such offense shall be punished by a fine of not less than $1,000.00 and not more than the maximum fine otherwise authorized by law. This minimum fine shall not in any such case be subject to suspension, stay, or probation. This minimum fine shall not be required in any case in which a sentence of confinement is imposed and such sentence of confinement is not suspended, stayed, or probated; but this subsection shall not prohibit imposition of any otherwise authorized fine in such a case.

(Code 1933, § 26-1812, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1972, p. 841, § 4; Ga. L. 1978, p. 1457, § 1; Ga. L. 1981, p. 1552, § 1; Ga. L. 1981, p. 1576, § 1; Ga. L. 1982, p. 1371, § 2; Ga. L. 1984, p. 900, § 3; Ga. L. 1986, p. 1228, § 1; Ga. L. 1992, p. 6, § 16; Ga. L. 1994, p. 359, § 1; Ga. L. 1996, p. 231, § 4; Ga. L. 1996, p. 416, § 4; Ga. L. 1997, p. 1507, § 4; Ga. L. 1998, p. 643, § 5; Ga. L. 2000, p. 1085, § 3; Ga. L. 2001, p. 1153, § 2; Ga. L. 2003, p. 177, § 1; Ga. L. 2004, p. 1072, § 2; Ga. L. 2006, p. 329, § 1/HB 1275; Ga. L. 2007, p. 650, § 4/SB 203; Ga. L. 2009, p. 731, § 4/SB 82; Ga. L. 2012, p. 112, § 1-2/HB 872; Ga. L. 2012, p. 899, § 3-2/HB 1176; Ga. L. 2014, p. 195, § 2/HB 749; Ga. L. 2018, p. 550, § 4-1/SB 407.)

The 2018 amendment, effective July 1, 2018, in subparagraph (a)(6)(B), inserted "year" and added the proviso at the end.

Cross references.

- Unlawful telemarketing transactions, § 10-1-393.6.

Reports of stolen motor vehicles, § 40-3-5.

Editor's notes.

- Ga. L. 1997, p. 1507, § 5, not codified by the General Assembly, provides that the 1997 amendment to this Code section is applicable to offenses committed on or after July 1, 1997.

Ga. L. 1998, p. 643, § 6, not codified by the General Assembly, provides that the 1998 amendment to this Code section is applicable to acts and offenses committed on or after July 1, 1998.

Ga. L. 2000, p. 1085, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Protection of Elder Persons Act of 2000'."

Ga. L. 2012, p. 112, § 4-1(a)/HB 872, not codified by the General Assembly, provides, in part, that the amendment of this Code section shall apply to all offenses committed on or after July 1, 2012.

Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."

Ga. L. 2014, p. 195, § 3/HB 749, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2014, and shall apply to all offenses committed on or after such date."

Law reviews.

- For article on recidivism and convictions based on nolo contendere pleas, see 13 Ga. L. Rev. 723 (1979). For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 29 (1997). For review of 1998 legislation relating to commerce and trade, see 15 Ga. St. U.L. Rev. 9 (1998). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 238 (2012). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For article on the 2018 amendment of this Code section, see 35 Ga. St. U.L. Rev. 45 (2018). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018). For note on 2000 amendment of O.C.G.A. § 16-8-12, see 17 Ga. St. U.L. Rev. 93 (2000).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Prior Convictions
  • Value

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 26-1813 are included in the annotations for this Code section.

O.C.G.A. § 16-8-12(a)(2) permits felony punishment for theft by taking in breach of a fiduciary obligation. Hannon v. State, 232 Ga. App. 352, 501 S.E.2d 865 (1998).

O.C.G.A.

§ 16-8-12(a)(5)(A) permits felony punishment for theft of tractor. - Pursuant to O.C.G.A. § 40-1-1(33), a self-propelled tractor was a motor vehicle as contemplated by state law. Browning v. State, 207 Ga. App. 547, 428 S.E.2d 441 (1993).

Theft of riding lawnmower punishable under O.C.G.A. § 16-8-2 not O.C.G.A. § 16-8-12. - Theft of a riding lawnmower was a violation of O.C.G.A. § 16-8-2, the theft by taking statute; a riding lawnmower was not a "motor vehicle" as that term was used in O.C.G.A. § 16-8-12(a)(5)(A). Harris v. State, 286 Ga. 245, 686 S.E.2d 777 (2009).

Riding lawnmower was not a "motor vehicle" as that term was used in the statute punishing theft of a motor vehicle, O.C.G.A. § 16-8-12(a)(5)(A); therefore, the defendant's conviction was reversed. A motor vehicle was defined by the court for purposes of § 16-8-12(a)(5)(A) as a self-propelled vehicle with wheels that was designed to be used, or was ordinarily used, to transport people or property on roads. Harris v. State, 286 Ga. 245, 686 S.E.2d 777 (2009).

O.C.G.A. § 16-8-12(a)(5)(A) permits felony punishment for theft of motor vehicle, regardless of value, and requires evidence of value exceeding $100 only if a motor vehicle part or component was the subject of the theft. Preston v. State, 183 Ga. App. 20, 357 S.E.2d 825, cert. denied, 183 Ga. App. 906, 357 S.E.2d 825 (1987); Jackson v. State, 267 Ga. 130, 475 S.E.2d 637 (1996); Sapp v. State, 222 Ga. App. 415, 474 S.E.2d 233 (1996); Jordan v. State, 224 Ga. App. 181, 480 S.E.2d 228 (1996).

State court had jurisdiction over prosecution of the defendant charged with theft by deception involving nine checks, each written for less than $280. Cartwright v. State, 229 Ga. App. 385, 494 S.E.2d 99 (1997).

Statute of limitations properly tolled.

- Because the statute of limitations as to two counts of theft by receiving was tolled during the period in which the person committing the crimes was unknown, and knowledge was not imputed to the state during this time, the prosecution of those counts was not time-barred. English v. State, 288 Ga. App. 436, 654 S.E.2d 150 (2007).

Misdemeanor offenses.

- Indictment charging two counts of theft by taking, each involving less than $500, charged offenses with maximum punishments of less than 12 months, i.e., misdemeanor offenses within the jurisdiction of the state court. Royster v. State, 226 Ga. App. 737, 487 S.E.2d 491 (1997).

Merger.

- Evidence supported the trial court's judgment that defendant committed felony theft by deception when defendant lied about obtaining a bank loan so the defendant could purchase three pieces of equipment, took the equipment from the owner to have it inspected, and kept the equipment without paying for it. However, the trial court erred when it convicted defendant of three counts of felony theft by deception because, although each piece of equipment was worth more than $500, the same evidence was used to prove all three counts and the counts merged, as a matter of fact, into one offense. Pettiford v. State, 265 Ga. App. 874, 595 S.E.2d 673 (2004).

Due to the entry of a guilty plea over 20 years before the filing of a motion to correct alleged illegal sentences, the defendant's merger claim was waived and since the sentences imposed were not void, the trial court lacked subject matter jurisdiction over the motion for correction. Sanders v. State, 282 Ga. App. 834, 640 S.E.2d 353 (2006).

Felony by statutory definition.

- While former Code 1933, § 26-1812 (see now O.C.G.A. § 16-8-12(a)(1)) granted the trial judge discretion to impose misdemeanor punishment, this provision did not reduce the offense to a misdemeanor, because theft of property of a value in excess of $100.00 (now $500.00) was a felony by statutory definition. Andrews v. State, 130 Ga. App. 2, 202 S.E.2d 246 (1973).

When the defendant was accused of keeping rather than depositing salon funds at the end of the day on six occasions, and the value of the checks and cash combined totaled over $500 missing from each deposit, the evidence supported six separate counts of felony theft by taking under O.C.G.A. § 16-8-12(a)(1). Matthews v. State, 257 Ga. App. 886, 572 S.E.2d 391 (2002).

Where property taken by government employee.

- Since a defendant may be convicted as a party to the crime of conversion, without first "having lawfully obtained the funds" under former Code 1933, § 26-1808 (see now O.C.G.A. § 16-8-4), it necessarily follows that a defendant may also be punished without having been a government employee "if the property was taken by an officer or employee of a government institution," under former Code 1933, § 26-1812(b) (see now O.C.G.A. § 16-8-12(a)(2)). Garrett v. State, 243 Ga. 322, 253 S.E.2d 741 (1979).

Illustrative cases.

- Defendant's actions while serving as a county sheriff, using sheriff's department employees and equipment for defendant's personal benefit, were so far outside the realm of acceptable police behavior that any rational trier of fact could have found proof beyond a reasonable doubt of theft by taking in violation of the duties as a public officer. Dorsey v. State, 279 Ga. 534, 615 S.E.2d 512 (2005).

Evidence was sufficient to convict the defendant of criminal trespass and theft by taking because the defendant was found at a recycling facility trying to sell pieces of the victim's aluminum awning, which the defendant had previously been told was not trash, but belonged to a laundry establishment. Jackson v. State, 301 Ga. App. 863, 690 S.E.2d 195 (2010).

Evidence was sufficient to support the defendant's conviction for felony theft by receiving stolen property in violation of O.C.G.A. § 16-8-7(a) because the jury was authorized to find that a ruby and diamond ring exceeding $ 500 in value had been stolen from the victim's house, that the defendant had acquired possession of the ring, and that the defendant knew or should have known the ring was stolen; although the defendant asserted that the ring found in the defendant's possession did not belong to the victim, that was a question for the jury as the trier of fact, and the jury had no obligation to believe the defendant's claim. Hogues v. State, 313 Ga. App. 717, 722 S.E.2d 430 (2012).

Indictment conjunctively alleging two violations sufficient.

- Indictment which conjunctively alleged violations of former Code 1933, § 26-1802 (see now O.C.G.A. § 16-8-2) (theft by taking) and former Code 1933, § 26-1812 (see now O.C.G.A. § 16-8-12) sufficiently advised defendant of both charges. Wages v. State, 165 Ga. App. 587, 302 S.E.2d 112 (1983).

Excessive sentence for misdemeanor.

- It was reversible error for the trial court to impose probated confinement for a period of five years on two counts of misdemeanor theft, when the maximum period of confinement which could be imposed was for a term of one year, as both sentences ran consecutively, and one of the conditions of the probation was that, in the event probation was revoked, the trial court could order the execution of the sentence originally imposed. Tenney v. State, 194 Ga. App. 820, 392 S.E.2d 294 (1990).

Misdemeanor punishment not authorized when pistol subject of offense.

- Trial court did not err by failing to charge the jury that the jury could recommend misdemeanor punishment upon conviction of the defendant for the felony offense of theft by receiving stolen property since a pistol was the subject of the charge. Rowe v. State, 266 Ga. 136, 464 S.E.2d 811 (1996).

When sentencing for felony is unauthorized.

- When there is no competent evidence showing the value of the subject property to be in excess of $100.00 (now $500.00), sentencing for a felony is unauthorized. Dunbar v. State, 146 Ga. App. 136, 245 S.E.2d 486 (1978).

Appellate court affirmed conviction of theft by receiving stolen property of some value but directed that the appellant's sentence be vacated and that the appellant be resentenced for a misdemeanor since the evidence was insufficient to establish that value of stolen property exceeded $200.00 (now $500.00). Searcy v. State, 163 Ga. App. 528, 295 S.E.2d 227 (1982).

Scrivener's error held moot.

- Because a scrivener's error regarding the sentence entered upon the defendant's plea to five counts of theft by taking had already been corrected by the trial court, the sentence imposed was upheld, and any claim of error was rendered moot. Manley v. State, 287 Ga. App. 358, 651 S.E.2d 453 (2007), cert. denied, 2008 Ga. LEXIS 94 (Ga. 2008).

Restitution order proper.

- Evidence was sufficient to support the trial court's determination of the amount of restitution awarded based on the rental agreements requiring the defendant to either make monthly payments on the televisions or return the television; the agreements provided for a total $2,797.90 in monthly payments, the defendant made only $573.60 in payments, and never returned the televisions. Williams v. State, 328 Ga. App. 898, 763 S.E.2d 280 (2014).

Jury instructions.

- Trial court did not err in failing to instruct the jury that property taken by a public officer in breach of the defendant's duties was punishable as a felony as a jury concerns itself with guilt or innocence, not punishment. Dorsey v. State, 279 Ga. 534, 615 S.E.2d 512 (2005).

Resentence proper.

- Trial court did not err in resentencing the defendant to a probated sentence of ten years for a theft by receiving conviction, upon filing a motion under O.C.G.A. § 16-8-12, with such sentence to commence ten years after the beginning of a term of imprisonment for an armed robbery conviction as: (1) the revised sentence did not impermissibly increase the original sentence imposed; (2) the revised probated sentence effected no change in the probation term to be served following the confinement for armed robbery as both the original and revised sentences provided for five years of probation, consecutive to the defendant's confinement; and (3) the defendant failed to show fulfillment of the maximum legal term for the theft by receiving conviction, or that any of the probation requirements had been satisfied. Fair v. State, 281 Ga. App. 518, 636 S.E.2d 712 (2006), cert. denied, No. S07C0125, 2007 Ga. LEXIS 494 (Ga. 2007).

Although the state argued that a juvenile had been adjudicated on five separate petitions setting out five separate felonies, because the record revealed that adjudication had occurred on only two prior occasions for acts which, if done by an adult, would have been felonies, the juvenile's sentence under O.C.G.A. § 15-11-63(a)(2)(B)(vii) was vacated, and the case was remanded for resentencing. In the Interest of P.R., 282 Ga. App. 480, 638 S.E.2d 898 (2006).

Failure to apply rule of lenity.

- Trial court erred in failing to apply the rule of lenity as the court sentenced the appellant under the pre-amendment version of O.C.G.A. § 16-8-12 and since the indictment only generally alleged that the offenses occurred at some point in a three-year span and the jury only had a general verdict form, it was impossible to discern if the appellant was found guilty for conduct occurring before or after the amendment; thus, the appellant could not be sentenced to a longer term imposed by the pre-amendment version. Anderson v. State, 350 Ga. App. 369, 829 S.E.2d 453 (2019).

Sentence appropriate.

- Because: (1) the defendant was properly sentenced for felony theft by taking as the defendant admitted to the accusation which valued the items taken at greater than $100; and (2) the offenses of theft by taking and entering an automobile with intent to commit theft did not merge for purposes of sentencing as each offense required the proof of different facts, the sentence imposed by the trial court was upheld. Neslein v. State, 288 Ga. App. 234, 653 S.E.2d 825 (2007).

Defendant's sentence for theft by deception for taking $2,611.29 from an elderly victim in a roofing scheme was within the statutory limits and, thus, the defendant's sentence of 10 years, with five years probated, was not so disproportionate as to shock the conscience. Jones v. State, 325 Ga. App. 845, 755 S.E.2d 238 (2014).

Cited in Stull v. State, 230 Ga. 99, 196 S.E.2d 7 (1973); Johnson v. State, 130 Ga. App. 134, 202 S.E.2d 525 (1973); Abbott v. State, 130 Ga. App. 891, 205 S.E.2d 14 (1974); Marchman v. State, 132 Ga. App. 677, 209 S.E.2d 88 (1974); McCrary v. Ricketts, 232 Ga. 890, 209 S.E.2d 148 (1974); Burkett v. State, 133 Ga. App. 728, 212 S.E.2d 870 (1975); Parrott v. State, 134 Ga. App. 160, 214 S.E.2d 3 (1975); King v. State, 134 Ga. App. 636, 215 S.E.2d 532 (1975); Henderson v. State, 134 Ga. App. 898, 216 S.E.2d 696 (1975); Sanders v. State, 135 Ga. App. 436, 218 S.E.2d 140 (1975); Dent v. State, 136 Ga. App. 366, 221 S.E.2d 228 (1975); Mahar v. State, 137 Ga. App. 116, 223 S.E.2d 204 (1975); Jones v. State, 137 Ga. App. 612, 224 S.E.2d 473 (1976); Mena v. State, 138 Ga. App. 722, 227 S.E.2d 411 (1976); Hickox v. State, 138 Ga. App. 882, 227 S.E.2d 829 (1976); Garrett v. State, 141 Ga. App. 584, 234 S.E.2d 161 (1977); Crowley v. State, 141 Ga. App. 867, 234 S.E.2d 700 (1977); Johnson v. State, 143 Ga. App. 160, 237 S.E.2d 605 (1977); Eubanks v. State, 144 Ga. App. 152, 241 S.E.2d 6 (1977); Yarber v. State, 144 Ga. App. 781, 242 S.E.2d 372 (1978); Peterkin v. State, 147 Ga. App. 437, 249 S.E.2d 152 (1978); Garrett v. State, 147 Ga. App. 666, 250 S.E.2d 1 (1978); Nowicki v. State, 148 Ga. App. 255, 251 S.E.2d 840 (1978); Garrett v. State, 243 Ga. 322, 253 S.E.2d 741 (1979); Parnell v. State, 151 Ga. App. 756, 261 S.E.2d 481 (1979); Jones v. State, 155 Ga. App. 382, 271 S.E.2d 30 (1980); Carnes v. Crawford, 246 Ga. 677, 272 S.E.2d 690 (1980); Jones v. State, 159 Ga. App. 845, 285 S.E.2d 584 (1981); Baker v. State, 160 Ga. App. 211, 286 S.E.2d 458 (1981); Jones v. State, 161 Ga. App. 218, 288 S.E.2d 293 (1982); Kraus v. State, 161 Ga. App. 739, 289 S.E.2d 555 (1982); Searcy v. State, 162 Ga. App. 695, 291 S.E.2d 557 (1982); Traylor v. State, 163 Ga. App. 473, 294 S.E.2d 707 (1982); Moyer v. State, 164 Ga. App. 629, 298 S.E.2d 308 (1982); McCormick v. Gearinger, 253 Ga. 531, 322 S.E.2d 716 (1984); McIlhenny v. State, 172 Ga. App. 419, 323 S.E.2d 280 (1984); Howard v. State, 173 Ga. App. 346, 326 S.E.2d 546 (1985); Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987); Jones v. Gaither, 640 F. Supp. 741 (N.D. Ga. 1986); Phinazee v. State, 182 Ga. App. 45, 354 S.E.2d 671 (1987); Ranson v. State, 198 Ga. App. 659, 402 S.E.2d 740; State v. Stamey, 211 Ga. App. 837, 440 S.E.2d 725 (1994); Simmons v. State, 222 Ga. App. 447, 474 S.E.2d 253 (1996); Holland v. State, 232 Ga. App. 284, 501 S.E.2d 829 (1998); Espinoza v. State, 243 Ga. App. 665, 534 S.E.2d 127 (2000); Conley v. State, 281 Ga. App. 841, 637 S.E.2d 438 (2006); State v. Henderson, 281 Ga. 623, 641 S.E.2d 515 (2007); Tiller v. State, 286 Ga. App. 230, 648 S.E.2d 738 (2007); Simmons v. State, 287 Ga. App. 68, 651 S.E.2d 359 (2007); Brandeburg v. State, 292 Ga. App. 191, 663 S.E.2d 844 (2008), cert. denied, No. S08C1796, 2008 Ga. LEXIS 921 (Ga. 2008); State v. Campbell, 295 Ga. App. 856, 673 S.E.2d 336 (2009); Vadde v. State, 296 Ga. App. 405, 674 S.E.2d 323 (2009); Kilby v. State, 335 Ga. App. 238, 780 S.E.2d 411 (2015), cert. denied, No. S16C0653, No. S16C0653, 2016 Ga. LEXIS 437 (Ga. 2016); State v. Crowder, 338 Ga. App. 642, 791 S.E.2d 423 (2016).

Prior Convictions

Alleging prior convictions in indictment.

- When, because of prior convictions, the state seeks to increase the punishment of one who is convicted for theft of an automobile, it is a requisite that the indictment allege the prior convictions upon which the state relies. Studdard v. State, 225 Ga. 410, 169 S.E.2d 327, answer conformed to, 120 Ga. App. 225, 170 S.E.2d 46 (1969).

Alleged recidivism of accused may not be disclosed to jury during the guilt/innocence phase of trial. Callahan v. State, 148 Ga. App. 555, 251 S.E.2d 790 (1978) (decided under former Code 1933, § 26-1813).

Time for defendant to challenge validity of convictions on which recidivism charge is made is when the state attempts to prove the convictions at the sentencing. Callahan v. State, 148 Ga. App. 555, 251 S.E.2d 790 (1978) (decided under former Code 1933, § 26-1813).

Value

Applicable statutory dollar amount.

- When theft was committed and a conviction had prior to the effective date of the 1982 amendment substituting "$500.00" for "$200.00" in O.C.G.A. § 16-8-12(a)(1), the $500.00 figure had no application in defendants' appeal as to the sufficiency of value proved. Pippin v. State, 166 Ga. App. 658, 305 S.E.2d 408 (1983).

Because the state failed to prove that the value of the property stolen, specifically, a washer and dryer, exceeded $500, as the owner of the property never offered any testimony regarding the cost or value of those items, and said nothing about their age and condition, the defendant's felony conviction associated with that charge was vacated and ordered reduced to a misdemeanor. English v. State, 288 Ga. App. 436, 654 S.E.2d 150 (2007).

Because the applicable law relevant to a crime is the law as the law existed at the time the crime occurred, where the theft of $350 was a felony with a four-year statute of limitations when the theft was committed, it remains such a felony with that statute of limitations despite subsequent reduction of the offense to a misdemeanor with a two-year statute of limitations. State v. Williams, 172 Ga. App. 708, 324 S.E.2d 557 (1984).

Evidence was sufficient to support the defendant's conviction for theft by receiving stolen property as the state introduced sufficient evidence to permit the jury to find that the bathtub in the back of the defendant's truck had been stolen from the house, that the defendant knew or should have known that the bathtub was stolen, and that the defendant had acquired possession of the bathtub; however, since the state did not prove that the actual fair market value of the bathtub exceeded $500.00, the trial court erred in imposing a felony sentence as only a misdemeanor sentence was authorized. DeLong v. State, 270 Ga. App. 173, 606 S.E.2d 107 (2004).

Evidence was sufficient for the jury to find that the items the appellant stole exceeded $500 in value when the evidence showed that the appellant had taken two gaming stations valued at $150 each, DVDs collectively valued at $175, as well as earrings and other items from the victim. Pulley v. State, 291 Ga. 330, 729 S.E.2d 338 (2012).

Value is relevant only to question of whether theft by taking is felony or misdemeanor.

- Only if there is a factual issue as to whether the value is more than $100.00 (now $500.00) does the jury need to establish value to assist the trial court in determining an appropriate sentence. Jones v. State, 147 Ga. App. 779, 250 S.E.2d 500 (1978).

Defendant prosecuted for misdemeanor when no proof value of stolen goods exceeded minimum.

- State must prove that the value of stolen goods purchased or received by a defendant exceeded the minimum level necessary to constitute a felony, and failure to meet this burden of proof entails that the defendant will be prosecuted, if at all, only on a misdemeanor offense. Lane v. State, 173 Ga. App. 804, 328 S.E.2d 231 (1985).

Value of the property can be a relevant issue in any theft case in the same manner as a substantive element; thus, the trial court did not err in charging the jury that, in order to convict the defendant of theft by taking, the jury must first find the value of the stolen property exceeded $500, as alleged in the indictment. Hammett v. State, 246 Ga. App. 287, 539 S.E.2d 193 (2000).

Classification of punishment determined by value of property taken.

- Though there was sufficient evidence to support a finding that a juvenile committed an act of theft by taking, because the state failed to offer evidence as to the stolen property's value, the juvenile court erred in finding that the juvenile committed an act of felony theft by taking. Thus, the case required a remand for an adjudication of delinquency and a disposition thereof to be entered against the juvenile for committing an act which would have supported a conviction for the offense of misdemeanor theft by taking since the value of the stolen property only was relevant as to the conviction's classification as a felony versus a misdemeanor. In the Interest of J. S., 296 Ga. App. 144, 673 S.E.2d 645 (2009).

Defendant's conviction for theft by conversion was supported by sufficient evidence because the conviction did not depend on the value of the stolen property, which was relevant only for purposes of distinguishing between a misdemeanor and a felony, therefore, the owner's testimony that the televisions had some value authorized the jury to find the defendant guilty, beyond a reasonable doubt, of misdemeanor theft by conversion. Williams v. State, 328 Ga. App. 898, 763 S.E.2d 280 (2014).

Punishment only is determined by value.

- There are not two thefts by taking crimes, one being a misdemeanor and the other being a felony. There is only one such crime, and upon conviction for it, the punishment only is determined by the value of the property taken. Mack v. Ricketts, 236 Ga. 86, 222 S.E.2d 337 (1976).

Defendant's felony sentence for theft by taking under O.C.G.A. §§ 16-8-2 and16-8-12(a) had to be vacated because, although the state proved that the defendant took certain software belonging to the defendant's employer, which the defendant was not permitted to copy, the state failed to prove the value of the software so the defendant could only receive a misdemeanor sentence; the value of the software was not an element of the crime but only determined whether the defendant was punished for a felony or a misdemeanor. DuCom v. State, 288 Ga. App. 555, 654 S.E.2d 670 (2007), cert. denied, No. S08C0598, 2008 Ga. LEXIS 383 (Ga. 2008).

Although an indictment for theft by taking under O.C.G.A. § 16-8-2 did not allege the value of stolen car parts defendant was caught removing from a business, the value was not an element of the offense. Because a jury found the parts were worth more than $100, the crime was punishable as a felony under O.C.G.A. § 16-8-12(a)(5)(A). Roman v. State, 300 Ga. App. 526, 685 S.E.2d 775 (2009), cert. denied, No. S10C0386, 2010 Ga. LEXIS 306 (Ga. 2010).

Value was not an element of the crime of theft by receiving stolen goods proscribed by former Code 1933, § 26-1812 (see now O.C.G.A. § 16-8-7), but value was relevant for the purpose of distinguishing between a misdemeanor and a felony for sentencing. Ayers v. State, 164 Ga. App. 195, 296 S.E.2d 772 (1982).

Value was not element of crime of theft by taking as proscribed by former Code 1933, § 26-1812 (see now O.C.G.A. § 16-8-2); the value of stolen items was relevant only for purposes of distinguishing between a misdemeanor and a felony. Stancell v. State, 146 Ga. App. 773, 247 S.E.2d 587 (1978); Hight v. State, 221 Ga. App. 574, 472 S.E.2d 113 (1996).

Whether theft by deception is misdemeanor or felony is material only to punishment.

- Whether the offense of theft by deception constitutes a misdemeanor or a felony is not material to the defense, and is only material after conviction for the purpose of sentencing under the provisions of former Code 1933, § 26-1812 (see now O.C.G.A. § 16-8-12). Guy v. State, 138 Ga. App. 11, 225 S.E.2d 492 (1976).

Value's impact on statute of limitations.

- Defendant was properly denied a motion for a directed verdict of acquittal based on the expiration of the statute of limitations under O.C.G.A. § 17-3-1 as the charge of theft by deception was a felony rather than a misdemeanor under O.C.G.A. § 16-8-12 based on the evidence that more than $500 was taken and, thus, a four-year statute of limitations applied; the defendant should have made a special plea in bar prior to the trial. Parks v. State, 294 Ga. App. 646, 669 S.E.2d 684 (2008).

Purchase price alone is not sufficient criterion of value. Pate v. State, 158 Ga. App. 395, 280 S.E.2d 414 (1981); Pippin v. State, 166 Ga. App. 658, 305 S.E.2d 408 (1983).

Although relevant to the question of value, the cost of the property to the owner is not the ultimate determinate of whether the offense of receiving stolen property is punishable as a felony or a misdemeanor. Baker v. State, 234 Ga. App. 846, 507 S.E.2d 475 (1998).

Testimony by the owner concerning the purchase price, absent any other evidence of value, was insufficient evidence to establish that the value of the property exceeded $500. Denson v. State, 240 Ga. App. 207, 523 S.E.2d 62 (1999).

Mere statement that thing has certain value without stating reasons for conclusion lacks probative value. Pate v. State, 158 Ga. App. 395, 280 S.E.2d 414 (1981).

Valuation of property.

- Owner of property may not testify as to the owner's opinion of the value of the property taken without giving the owner's reasons therefor, and an opinion as to value based solely on cost price is inadmissible in evidence as it has no probative value. Dotson v. State, 144 Ga. App. 113, 240 S.E.2d 238 (1977).

Owner of property may not testify as to the owner's opinion of the value of property in a single or gross amount without giving the owner's reasons therefor, or else showing an opportunity for forming a correct opinion. But cost price, if coupled with other evidence, may be admitted as an element upon which an opinion may be formed as to the item's value. Dunbar v. State, 146 Ga. App. 136, 245 S.E.2d 486 (1978).

To prove the value of the property allegedly stolen, the state may offer the testimony of an employee of the corporate owner of the property where the witness clearly establishes that the witness has knowledge, experience, and familiarity with the value of the property or similar property, and thus establishes the witness's reasons for the value, having an opportunity for forming such an opinion. Pippin v. State, 166 Ga. App. 658, 305 S.E.2d 408 (1983).

When the defendant was convicted of stealing Christmas presents from the victims' house, the items stolen could be considered "everyday objects," and the jurors' awareness of the value of such objects was sufficient to allow the jurors to consider evidence of the purchase price of the items and to make reasonable deductions based on the jurors' own knowledge of value, and this evidence supported the felony sentence the trial court imposed under O.C.G.A. § 16-8-12(a)(1). Campbell v. State, 275 Ga. App. 8, 619 S.E.2d 720 (2005).

Evidence was sufficient to support the sentence for felony theft by taking as the state established that the value of the rented property taken, namely a skid steer, an augur attachment, a fork attachment, and the trailer used to haul the equipment was over $500 based on the testimony of the fence company employee as to the value of the equipment being over $500 and the testimony of the person defendants tried to sell the items to, who testified based on experience in dealing with that type of equipment, that the price defendants tried to sell the property at ($1800) was much too low. As a result, that testimony, together with the equipment operator's and the sales manager's testimony, was sufficient to show that the property stolen was worth more than $500. Barron v. State, 291 Ga. App. 494, 662 S.E.2d 285 (2008).

Trial court did not err in concluding that the victim's testimony was sufficient to allow a felony theft charge to go to the jury because the victim testified as to the market value for each of the items stolen from the victim, and the total value exceeded $500; the victim established that the victim had an opportunity to form a correct opinion because the victim based the opinion as to the market value of the stolen tools on the age of the tools and the victim's experience using and purchasing the tools. Sheppard v. State, 300 Ga. App. 631, 686 S.E.2d 295 (2009).

Testimony of a store's loss prevention officer as to the price of the phone that was taken was sufficient to support the defendant's felony conviction. Mendez v. State, 327 Ga. App. 497, 759 S.E.2d 574 (2014).

Although the defendant was properly convicted of theft by taking, the evidence was insufficient to prove that the theft was of a felony amount since the witness testified to an amount totally under $100. Harris v. State, 328 Ga. App. 852, 763 S.E.2d 133 (2014).

Proof of value of stolen property.

- When the defendant failed to dispute the amount of restitution ordered as a condition of probation for theft by taking, that the state failed to prove the amount at trial was of no consequence because the state was only required to prove that the defendant stole in excess of $200.00 (now $500.00) under O.C.G.A. § 16-8-12(a)(1). Johnston v. State, 165 Ga. App. 792, 302 S.E.2d 708 (1983).

Defendant was convicted of felony theft by taking under O.C.G.A. §§ 16-8-2 and16-8-12(a)(1) for taking more than $500 from potential buyers of ecstasy pills and then fleeing with the money without delivering the promised pills since there was sufficient evidence that defendant took more than $500 despite the defendant's claim that the money was counterfeit after one of the buyers testified that the buyer contributed $1,000 of real money to the total that was given to the defendant. Camero v. State, 257 Ga. App. 109, 570 S.E.2d 405 (2002).

Defendant was properly sentenced as a recidivist, under O.C.G.A. § 17-10-7(c), because it was shown that the defendant pled guilty in Alabama to theft of an automobile, and, under Georgia law, theft of a motor vehicle was a felony, regardless of the value of the vehicle under O.C.G.A. § 16-8-12(a)(5)(A). Johnson v. State, 268 Ga. App. 1, 601 S.E.2d 392 (2004).

In a prosecution for theft by receiving stolen property under O.C.G.A. § 16-8-7(a), there was insufficient evidence to support felony sentencing under O.C.G.A. § 16-8-12(a) because the evidence was only sufficient to authorize a conviction based on a stolen racing jacket, and there was no evidence showing that the value of the racing jacket exceeded $500. Duncan v. State, 278 Ga. App. 703, 629 S.E.2d 577 (2006).

It was error to convict a defendant, a bookstore employee, of felony theft by taking when there was no evidence regarding the quantity of the books and videos taken on the date in question and it therefore could not be determined that the value of the merchandise stolen exceeded $500; as the defendant admitted taking some items and there was evidence that the merchandise had some value, the conviction was to be reduced to a misdemeanor. Gorham v. State, 287 Ga. App. 404, 651 S.E.2d 520 (2007), overruled on other grounds, McCart v. State, 289 Ga. App. 830, 658 S.E.2d 465 (2008).

Defendant was properly sentenced for felony theft of aluminum tire rims under O.C.G.A. § 16-8-12(a)(1) because the prosecution established that the value of the rims exceeded $500 since lay testimony of the victim provided that used rims were valued at between $150 and $175 each so that the total value of the eight to nine rims taken exceeded $1,000. Perdue v. State, 300 Ga. App. 588, 685 S.E.2d 489 (2009).

Trial court did not err in imposing a felony sentence pursuant to O.C.G.A. § 16-8-12(a)(1) after the defendant was convicted of theft by taking in violation of O.C.G.A. § 16-8-2 for stealing lumber and other materials from a builder's job site because the evidence was sufficient for the trial court to determine that the fair cash market value of the property at the time and place of the theft exceeded $500 when according to the builder, the cost of the materials was $450, and the cost of the labor to construct the jigs was approximately $200, bringing the total value of the stolen property to $650; the builder clearly established knowledge, experience, and familiarity with the value of the property and, thus, established reasons for the value, having an opportunity for forming such an opinion. Partin v. State, 302 Ga. App. 589, 692 S.E.2d 32 (2010).

Evidence was sufficient to support the defendant's conviction for felony theft by taking in violation of O.C.G.A. § 16-8-12(a)(1) because the jury was authorized to find that the value of the goods the defendant stole from the defendant's girlfriend was more than $500; the girlfriend's testimony as to the age and condition of the stolen items, coupled with the cost price of the items, was admissible as a basis for her opinion that the value of the stolen items was more than $500. Wilson v. State, 304 Ga. App. 743, 698 S.E.2d 6 (2010).

Evidence from a plant employee that golf club heads stolen by an employee cost $203 each wholesale and that their value was $203 each was sufficient for the trial court to determine that the value of the items stolen at the time and place of the theft exceeded $500 for purposes of sentencing under O.C.G.A. § 16-8-12(a)(1). Baker v. State, 311 Ga. App. 532, 716 S.E.2d 580 (2011).

State failed to establish that the value of stolen jewelry exceeded $500 as required for felony theft by taking. There was evidence that the rings were part of an entire lot of jewelry - including necklaces, bracelets, rings, and pendants - that the victim had previously purchased from the pawn shop for $10,000. The only evidence related to the specific items taken by the defendant showed that the defendant pawned nine rings for $275. Schneider v. State, 312 Ga. App. 504, 718 S.E.2d 833 (2011).

Evidence from a theft victim as to the value of a stolen cell phone and items of jewelry that the victim or the victim's spouse had purchased was sufficient to establish that the stolen items' value exceeded $ 500 and was sufficient to support a felony sentence. Reese v. State, 313 Ga. App. 746, 722 S.E.2d 441 (2012).

Motor vehicles.

- O.C.G.A. § 16-8-12(a)(5)(A) allowed the trial court to sentence the defendant to not less than one nor more than 20 years' imprisonment for theft of a motor vehicle, and the court properly sentenced the defendant to 10 years' imprisonment even though the state did not offer evidence to prove the value of the vehicle the defendant took. Martin v. State, 266 Ga. App. 190, 596 S.E.2d 705 (2004).

Sufficient evidence existed to support the defendant's convictions for theft by deceitful means, in violation of O.C.G.A. § 16-8-3, because the defendant held the defendant out as an attorney and took title and possession of an elderly person's vehicle in payment for the legal services rendered; the state was not obligated to prove the value of the vehicle for purposes of imposition of a felony sentence under O.C.G.A. § 16-8-12(a)(5)(A), as the motor vehicle was valued at more than $100.00. Marks v. State, 280 Ga. 70, 623 S.E.2d 504 (2005).

Evidence of value of the stolen motor vehicle parts as exceeding $100, allowing a sentence for felony theft under O.C.G.A. § 16-8-12(a)(5)(A), was supported by testimony from the owner, who had been in the parts business since 1973, and who identified the engines as vintage 1960s Volkswagen engines that would cost $2500 or more to replace. Brown v. State, 337 Ga. App. 36, 785 S.E.2d 674 (2016).

Video cassette recorders may now be considered "everyday objects" which the jury may determine the value of. Moore v. State, 171 Ga. App. 911, 321 S.E.2d 413 (1984).

Evidence supported jury determination of value.

- There was sufficient evidence for the jury to determine that the combined value of the goods in defendant's possession (a VCR and a pistol) was in excess of $500.00. Ford v. State, 183 Ga. App. 566, 359 S.E.2d 435 (1987).

Felony sentence inappropriate when inadequate proof of value.

- Felony sentence imposed by the trial court was vacated, and the case was remanded because, although the State of Georgia proved beyond a reasonable doubt that the defendant committed the offense of theft by taking under O.C.G.A. § 16-8-2, the state's evidence was insufficient under O.C.G.A. § 16-8-12 to establish that the current fair market value of the stolen items exceeded $500. Porter v. State, 308 Ga. App. 121, 706 S.E.2d 620 (2011).

Amounts stolen could be aggregated into one count.

- Defendant's conviction for felony theft by taking over $500.00 was supported by the evidence as defendant was accused of stealing over $500.00 in the aggregate over a 35-month period; the state could aggregate the amount of money stolen over a period of time into one count in an accusation. Parham v. State, 275 Ga. App. 528, 621 S.E.2d 532 (2005).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Habitual Criminals and Subsequent Offenders, § 1 et seq.

ALR.

- Fixed or controlled price as affecting value of goods for purpose of determining degree of larceny, 157 A.L.R. 1303.

Single or separate larceny predicated upon stealing property from different owners at the same time, 37 A.L.R.3d 1407.

Fact that gun was broken, dismantled, or inoperable as affecting criminal responsibility under weapons statute, 81 A.L.R.4th 745.

Consideration of sales tax in determining value of stolen property or amount of theft, 63 A.L.R.5th 417.

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