If you are charged with Retail Fraud 1st Degree in Livonia, Michigan, you need the help of an experienced Livonia criminal defense attorney. I can provide you with nearly 20 years of experience and a willingness to fight and take cases to trial.
Retail Fraud, 1st Degree is a class E felony that carries up to 5 years in prison (60 months). If you are arrested and charged with Retail Fraud 1st Degree, your first court appearance will be an arraignment in the 16th District Court in Livonia, Michigan. Learn more about an arraignment now. At the arraignment, your case will be scheduled for a probable cause conference and a preliminary examination. Bond will also be addressed at the arraignment. The probable cause conference must be scheduled within 7 to 14 days of the arraignment with the preliminary examination scheduled within 5 to 7 days after the probable cause conference.
Following the preliminary examination, further proceedings are held in the Wayne County Circuit Court at the Frank Murphy Hall of Justice in downtown Detroit. If there is virtually any evidence supporting the prosecutor's case, it is extremely likely that the matter will be bound over in the district court. Nonetheless, I almost always challenge cases at the preliminary examination because it is the best opportunity that the defense is presented for challenging the evidence and developing the facts that will support defenses in the circuit court. DO NOT WAIVE THE PRELIMINARY EXAMINATION WITHOUT MAKING AN INFORMED DECISION.
The charge of Retail Fraud 1st Degree is detailed in the Michigan compiled laws, MCL 750.356c. The provisions of MCL 750.356c state:
(1) A person who does any of the following in a store or in its immediate vicinity is guilty of retail fraud in the first degree, a felony punishable by imprisonment for not more than 5 years or a fine of not more than $10,000.00 or 3 times the value of the difference in price, property stolen, or money or property obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine:
(a) While a store is open to the public, alters, transfers, removes and replaces, conceals, or otherwise misrepresents the price at which property is offered for sale, with the intent not to pay for the property or to pay less than the price at which the property is offered for sale, if the resulting difference in price is $1,000.00 or more.
(b) While a store is open to the public, steals property of the store that is offered for sale at a price of $1,000.00 or more.
(c) With intent to defraud, obtains or attempts to obtain money or property from the store as a refund or exchange for property that was not paid for and belongs to the store, if the amount of money or the value of the property obtained or attempted to be obtained is $1,000.00 or more.
(2) A person who violates section 356d(1) and who has 1 or more prior convictions for committing or attempting to commit an offense under this section or section 218, 356, 356d(1), or 360 is guilty of retail fraud in the first degree. For purposes of this subsection, however, a prior conviction does not include a conviction for a violation or attempted violation of section 218(2) or (3)(b) or section 356(4)(b) or (5).
(3) The values of the difference in price, property stolen, or money or property obtained or attempted to be obtained in separate incidents pursuant to a scheme or course of conduct within any 12-month period may be aggregated to determine the total value involved in the offense under this section.
(4) If the prosecuting attorney intends to seek an enhanced sentence based upon the defendant having 1 or more prior convictions, the prosecuting attorney shall include on the complaint and information a statement listing the prior conviction or convictions. The existence of the defendant's prior conviction or convictions shall be determined by the court, without a jury, at sentencing or at a separate hearing for that purpose before sentencing. The existence of a prior conviction may be established by any evidence relevant for that purpose, including, but not limited to, 1 or more of the following:
(a) A copy of the judgment of conviction.
(b) A transcript of a prior trial, plea-taking, or sentencing.
(c) Information contained in a presentence report.
(d) The defendant's statement.
(5) A person who commits retail fraud in the first degree shall not be prosecuted under section 218(5) or 356(2).
(6) If the sentence for a conviction under this section is enhanced by 1 or more prior convictions, those prior convictions shall not be used to further enhance the sentence for the conviction pursuant to section 10, 11, or 12 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.10, 769.11, and 769.12.
Retail Fraud 1st Degree under Michigan sentencing guidelines is scored under crimes against property (Property). Under the guidelines, a person who is convicted of Retail Fraud, 1st Degree with no prior record and no aggravating factors looks to the low end of the guidelines which call for up to 3 months. With no prior criminal record but horrible facts, the defendant can face 17* months. With a terrible criminal record and terrible facts, the accused can be looking at 38 months under the guidelines.
The jury instructions set forth the following elements for Retail Fraud, 1st Degree that must be proven beyond a reasonable doubt by the prosecuting attorney:
M Crim JI 23.13 Retail Fraud-Theft
(1) The defendant is charged with retail fraud in the [first / second / third] degree. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant took some property that the store offered for sale.
(3) Second, that the defendant moved the property. Any movement is enough. It does not matter whether the defendant actually got the property past the cashier or out of the store.
(4) Third, that the defendant intended to steal the property. By intended to steal, I mean that the defendant intended to permanently take the property from the store without the store's consent.
(5) Fourth, that this happened either inside the store or in the immediate area around the store, while the store was open to the public.
(6) Fifth, that the price of the property was:
[Choose only one of the following unless instructing on lesser offenses:]
(a) $1,000 or more.
(b) $200 or more, but less than $1,000.
(c) some amount less than $200.
[Use the following paragraph only if applicable:]
(7) [You may add together the prices of property taken in separate incidents if part of a scheme or course of conduct within a 12-month period when deciding whether the prosecutor has proved the amount required beyond a reasonable doubt.]
I can't emphasize enough how important it is to focus on the jury instructions while preparing a defense to the offense of Retail Fraud 1st Degree. While there are a number of defenses to Retail Fraud, 1st Degree that we can explore during a consultation, the elements contained in M Crim JI 23.13 provide a roadmap for defending the case. This is true in almost every single case, and really great defense attorneys focus early on these jury instructions.
As a cautionary note, you might be completely innocent but still face criminal charges. Even worse, you might be denied bail, forced to spend months in jail before you are vindicated. I have seen many cases where a truly innocent client is baffled, angry and scared, completely unable to understand why police and prosecutors are gunning to get a conviction. So long as probable cause is established at the preliminary examination, then the matter will be bound over for trial in the 3rd Circuit Court for the County of Wayne and further proceedings will be held in the Frank Murphy Hall of Justice in downtown Detroit. This is why it is so important that you contact an experienced Livonia criminal defense attorney to help you defend against criminal charges in the 16th District Court.
*represents an aberration under the guidelines that might result in county jail time or violate the 2/3rd maximum minimum rules under the guidelines, which is something that must be discussed with your attorney.