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Theft by Deception (O.C.G.A. §16-8-3) in Georgia

I don’t often see people charged with theft by deception. It’s just a rarely used statute that requires usually requires prying into the mind of the individual to gauge what he knew or what his intentions were when he had a particular transaction with someone.

What I have seen before are people who have had business deals go bad and find themselves on the receiving end of a warrant application by the person whom they had the deal with. This particular “crime” blurs the lines between a garden variety contract dispute and a crime. That wasn’t the intention of the authors of the statute, but we can judge outcomes by the intent of those initiating the event.

O.C.G.A. §16-8-3 states that, “A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.”

The State Assembly was, at least, nice enough to give us a definition of “deceives”. One does so if he intentionally:

(1)  Creates or confirms another's impression of an existing fact or past event which is false and which the accused knows or believes to be false;

(2) Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed;

So, for example, someone thinks you are someone you are not. If you created that impression or confirmed it for them, when you could have done otherwise, you have deceived them. Should you obtain property from them stemming from this false assumption, you would be in violation of the statute.

(3) Prevents another from acquiring information pertinent to the disposition of the property involved;

While I’m sure a scenario where someone would violate the statute under this subsection (while not violating it under 1 or 2) is possible, I just can’t think of one. If someone else does, please email me.

(4) Sells or otherwise transfers or encumbers property intentionally failing to disclose a substantial and valid known lien, adverse claim, or other legal impediment to the enjoyment of the property, whether such impediment is or is not a matter of official record; or

This is, of course, pertinent to real property transfers. However, with the modern recording system for property deeds, this is probably employed rarely these days.

(5) Promises performance of services which he does not intend to perform or knows will not be performed. Evidence of failure to perform standing alone shall not be sufficient to authorize a conviction under this subsection.

This is the subsection I spoke of in the introduction. As you can see, failure to perform under the contract, alone, is insufficient to sustain a conviction. It does not, however, prevent the aggrieved party from heading down to magistrate court to swear-out a warrant application.

A proper defense to this accusation is merely that the accused had every intention of performing under the contract, but was just unable or that he/she found breach of contract to be less costly than performance under the contract due to miscalculation.

In the construction trades, many “bosses” are good at their jobs, but not so good at managing their businesses. So, they often “float” this week’s paychecks (to their employees) with next week’s deposits on work. Ultimately, this catches up to the foreman and he/she has no money to finish, or sometimes even start, certain jobs. Furthermore, they have no assets to pursue legally. This leaves those who fronted the deposit very angry. They feel their only recourse is the criminal code and they attempt to have the contractor charged with a crime.

 This example would be an unfair use of the statute. It’s not meant to punish poor businessmen criminally.

 Punishment is as follows:

            For property valued at $25,000 or more – Felony: 2 to 20 years imprisonment

            For property valued at $5,000 to $24,999 – Felony: 1 to 10 years imprisonment

For property valued at $1,500.01 to $4,999 – Felony: 1 to 5 years imprisonment For property valued at $1,500 or less, it’s now a misdemeanor punishable by up to 12 months in jail.

However, if you have two prior convictions, the third, no matter the value of the property, the third conviction is a felony punishable by 1 to 5 years imprisonment.

Finally, if the VICTIM is 65 years or older, anything over $500 is a felony punishable by 5 to 10 years imprisonment.

If you or someone you know has been charged with this offense, and have questions, please email me at [email protected] or call me at 770-729-4809.

 - Jason Carnell

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