Tuesday, February 26, 2013


Your favorite Clearwater Criminal Defense Attorney was recently asked if the use of xanax could be a defense to a charge of retail theft and in Tampa Bay, Florida. 

Here's what I was asked:
Monet's painting shows a frail lady bending yet fighting in the wind not unlike the lady who wrote me about retail theft and grand theft in Tampa Bay, Florida.
Monet, Lady in Wind
After the recent death of my husband I was given a prescription for xanax for my recurring panic attacks. While shopping with my two daughters while on vacation in Florida I suffered a panic attack. I left the store hurriedly without paying for the things in my cart. 
I tried to explain, but I was detained and Clearwater Police were called. I was arrested for Gand Theft. I thought Grand Theft was for very serious crimes involving a lot of stolen property, there were very few items in the cart. 
Can this charge be dismissed as I did not mean to do it and I was on the meds at the time? How could a mere retail theft could be charged as a Grand Theft especially when I had plenty of money to pay for the things my daughters threw into the cart?

The xanax following hard upon her husband's death would be effective with a Florida jury, but unlikely to sway Tampa Bay prosecutors to drop felony charges. Nor would the recent death of the Defendant's husband help. In fact when searching for explanations for crime such as theft for previous non-offenders a recurring theme establishes the likelihood that traumatic events in one's life such as divorce, cancer or death of a loved one may increase rather than decrease the chance of criminal intent. Next they'll tell us bad luck causes crime.

Years ago while a prosecutor in Tampa Bay, Florida a defense lawyer gave me solid medical evidence that his client in a retail theft case involving sunglasses had advanced alzheimer's disease. One might think that would be enough to establish there was no criminal intent.
I recommended that the case immediately be nolle prossed, the legal term for dismissing a case in Florida. The elected State Attorney, a sluggish impotent man, saw fit to file the case anyway. It dragged on for years. Perhaps somewhere in the foggy Criminal Justice System the case is still grinding away as in Dicken's Bleak House
So no, it's unlikely prosecutors would dismiss the case based on the facts you've given unless you could prove the panic attack occurred before you left the store with evidence such as video from the store, testimony from others in the store and the testimony from your daughters. 
Any amount of theft of $300 or more is a Grand Theft in Florida no matter how the theft occurs. If the total amount of the items is under $300.00, then it should be filed as a misdemeanor rather than a felony. A strong defense will establish some elasticity to undercut the store's interpretation of the actual value of a loss. For example what is the real value of an item the store is selling but that was damaged or previously returned or actually on sale at the time of the theft? 
If they won't dismiss it or reduce it and if you have no prior record, you might be eligible to have the case dismissed with Pretrial Intervention or be eligible for a withholding of adjudication of guilt or sometime an experimental civil citation program. If none of these options are available, and if you don't want to plea guilty, then you'd likely need to have a jury trial. 
In Florida a Judge won't grant a motion to dismiss where the facts of possible guilt are in dispute. In a jury trial your Tampa Bay Criminal Lawyer would present all of the evidence consistent with your innocence including use of xanax and the panic attack itself as a defense.

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