By: Adam L. Bantner, II

The Bantner Firm

Board Certified Criminal Trial Law Attorney

Candidate for Hillsborough County Court Judge, Group 2

 Typically, the decision to put your client on the stand at trial involves numerous considerations such as how he/she will present to a jury, his or her criminal history, the skill of the prosecutor, the need to rebut State evidence, the need to present an affirmative defense. There is one occasion when it is almost always a good idea: to rebut the inference arising from possession of recently stolen property.

To prove theft, the State must prove beyond a reasonable doubt that:

  1. Defendant knowingly and unlawfully obtained or used or endeavored to obtain or to use the property of the victim, and
  2. He or she did so with intent to, either temporarily or permanently deprive the victim of his or her right to the property or any benefit from it.[1]

Fla. Stat. ⸹ 812.022(2) provides, in material part, that “…proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” The inference provided by section 812.022(2) is sufficient to support a theft conviction without any other evidence. See Smith v. State, 742 So. 2d 352, 354-55 (Fla. 5th DCA 1999).

The key phrase of the presumption, for this article, is unless satisfactorily explained. In theory, the defense could provide an explanation from a person not the defendant. For example, let’s suppose the defense is that the defendant bought the property from a third party and lacked knowledge of the property being stolen. The third party could testify that he witnessed the transaction. Any statements made during the transaction should be admissible as they are not offered for the truth of the matter asserted but to explain possession and defendant’s state of mind.

However, based on caselaw, if the State lacks any other evidence of guilt, the most surefire method to obtain a judgment of acquittal would be to put the defendant on the stand. In C.T. v. State, 42 Fla. L. Weekly D2510a, (Fla.3d DCA 2017), the Court quoted Smith v. State, 742 So. 2d 352, 355 (Fla. 5th DCA 1999) and stated that “where a reasonable explanation for possession of recently stolen property is totally unrefuted, and there is no other evidence of guilt, the court must grant a directed verdict for the defendant.” The Second DCA takes the same position in Coleman v. State, 466 So. 2d 395, 397 (Fla. 2d DCA 1985) (“[T]he rule is that where a defendant gives a patently reasonable explanation for his possession of recently stolen goods which is totally unrefuted, and there is no other evidence of guilt, the court must direct a judgment of acquittal.”

Before rushing to put your client on the stand armed with these cases, be certain that the State doesn’t possess other evidence of guilt that would allow the court to deny your motion for judgment of acquittal. Some evidence for which to be on the lookout includes evidence of damage to the vehicle indicating a break-in, flight from law enforcement, conflicting explanations by defendant to law enforcement, or that it was purchased at a price substantially below market price.

Assuming evidence such as that mentioned does not exist, go ahead, put your client on the stand and get that JOA!

[1] Fla. Standard Jury Instructions in Criminal Cases, 14.2