Is Purchasing a Used Clothing Item and Returning it to a Department Store Considered Theft
Full Question:
Answer:
A theft charge in MD may include retail fraud, where a person knowingly returns an item not purchased at the store to obtain a money refund. It may be possible to receive a deferred adjudication, so that the charges will be discharged after the terms of probation are completed.
The following is a MD statute governing deferred adjudication:
§ 6-220 CRIM. PROC. Authority of court to stay judgment and impose
probation; terms and conditions of probation; when probation is not
allowed; effect of violating probation.
(a) "Custodial confinement" defined. — In this
section, "custodial confinement" means:
(1) home detention;
(2) a corrections options program established under law
which requires the individual to participate in home
detention, inpatient treatment, or other similar program
involving terms and conditions that constitute the
equivalent of confinement; or
(3) inpatient drug or alcohol treatment.
(b) In general. —
(1) When a defendant pleads
guilty or nolo contendere or is found guilty of a crime, a
court may stay the entering of judgment, defer further
proceedings, and place the defendant on probation subject
to reasonable conditions if:
(i) the court finds that the best interests of the
defendant and the public welfare would be served; and
(ii) the defendant gives written consent after
determination of guilt or acceptance of a nolo contendere
plea.
(2) Subject to paragraphs (3) and (4) of this subsection,
the conditions may include an order that the defendant:
(i) pay a fine or monetary penalty to the State or make
restitution; or
(ii) participate in a rehabilitation
program, the parks program, or a voluntary hospital
program.
(3) Before the court orders a fine, monetary penalty, or
restitution, the defendant is entitled to notice and a
hearing to determine the amount of the fine, monetary
penalty, or restitution, what payment will be required, and
how payment will be made.
(4) Any fine or monetary penalty imposed as a condition of
probation shall be within the amount set by law for a
violation resulting in conviction.
(5) As a condition of probation, the court may order a
person to a term of custodial confinement or imprisonment.
(c) Participation in treatment and education
programs. —
(1) When the crime for which the judgment
is being stayed is for a violation of § 21-902 of the
Transportation Article or § 2-503, § 2-504, § 2-505,
§ 2-506, or § 3-211 of the Criminal Law Article, the court:
(i) before imposing a period of probation, may order the
Department of Health and Mental Hygiene to evaluate the
defendant in accordance with § 8-505 of the
Health — General Article;
(ii) if an evaluation was ordered under item (i) of this
paragraph, shall review the evaluation before imposing a
period of probation; and
(iii) shall impose a period of probation and, as a
condition of the probation:
1. shall require the defendant to participate in an alcohol
or drug treatment or education program approved by the
Department of Health and Mental Hygiene, unless the court
finds and states on the record that the interests of the
defendant and the public do not require the imposition of
this condition; and
2. may prohibit the defendant from operating a motor
vehicle unless the motor vehicle is equipped with an
ignition interlock system under § 27-107 of the
Transportation Article.
(2) When the crime for which the judgment is being stayed
is for a violation of any provision of Title 5 of the
Criminal Law Article, the court shall impose a period of
probation and, as a condition of probation, require the
defendant to participate in a drug treatment or education
program approved by the Department of Health and Mental
Hygiene, unless the court finds and states on the record
that the interests of the defendant and the public do not
require the imposition of this condition.
(d) Conditions under which probation before judgment
prohibited. — Notwithstanding subsections (b) and (c)
of this section, a court may not stay the entering of
judgment and place a defendant on probation for:
(1) a violation of § 21-902 of the Transportation
Article or § 2-503, § 2-504, § 2-505, § 2-506, or § 3-211 of the
Criminal Law Article, if within the preceding 5 years the
defendant has been convicted under § 21-902 of the
Transportation Article or § 2-503, § 2-504, § 2-505,
§ 2-506, or § 3-211 of the Criminal Law Article, or has
been placed on probation in accordance with this section,
after being charged with a violation of § 21-902 of the
Transportation Article or § 2-503, § 2-504, § 2-505,
§ 2-506, or § 3-211 of the Criminal Law Article;
(2) a second or subsequent controlled dangerous substance
crime under Title 5 of the Criminal Law Article;
(3) a violation of any of the provisions of §§ 3-303
through 3-307, §§ 3-309 through 3-312, § 3-315, or § 3-602
of the Criminal Law Article for a crime involving a person
under the age of 16 years; or
(4) a moving violation, as defined in § 11-136.1 of the
Transportation Article, if:
(i) the defendant holds a provisional license under
§ 16-111 of the Transportation Article; and
(ii) the defendant has previously been placed on probation
under this section for the commission of a moving violation
while the defendant held a provisional license.
(e) Waiver of right to appeal. —
(1) By consenting
to and receiving a stay of entering of the judgment as
provided by subsections (b) and (c) of this section, the
defendant waives the right to appeal at any time from the
judgment of guilt.
(2) Before granting a stay, the court shall notify the
defendant of the consequences of consenting to and
receiving a stay of entry of judgment under paragraph (1)
of this subsection.
(f) Effect of violation of probation. — On
violation of a condition of probation, the court may enter
judgment and proceed as if the defendant had not been
placed on probation.
(g) Effect of fulfillment of conditions of
probation. —
(1) On fulfillment of the conditions of
probation, the court shall discharge the defendant from
probation.
(2) The discharge is a final disposition of the matter.
(3) Discharge of a defendant under this section shall be
without judgment of conviction and is not a conviction for
the purpose of any disqualification or disability imposed
by law because of conviction of a crime.
(h) Local provisions. — Repealed by Acts 2003,
ch. 21, § 1, effective October 1, 2003.
(i) Custodial credit. — If an individual violates
the terms of probation, any time served by the individual
in custodial confinement shall be credited against any
sentence of incarceration imposed by the court.
It is possible to get criminal records expunged in MD. The following is a MD statute governing expungement:
§ 10-105 CRIM. PROC. Right to petition for expungement of records
after charge is filed; conditions and limitations; procedures.
**Update Notice: This section has been amended by
CHAPTER 615 OF 2008,
CHAPTER 616 OF 2008
(a) Petition for expungement. — A person who
has been charged with the commission of a crime, including
a violation of the Transportation Article for which a term
of imprisonment may be imposed, or who has been charged
with a civil offense or infraction, except a juvenile
offense, as a substitute for a criminal charge may file a
petition listing relevant facts for expungement of a police
record, court record, or other record maintained by the
State or a political subdivision of the State if:
(1) the person is acquitted;
(2) the charge is otherwise dismissed;
(3) a probation before judgment is entered, unless the
person is charged with a violation of § 21-902 of the
Transportation Article or Title 2, Subtitle 5 or § 3-211 of
the Criminal Law Article;
(4) a nolle prosequi or nolle prosequi with the requirement
of drug or alcohol treatment is entered;
(5) the court indefinitely postpones trial of a criminal
charge by marking the criminal charge "stet" or stet with
the requirement of drug or alcohol abuse treatment on the
docket;
(6) the case is compromised under § 3-207 of the Criminal
Law Article;
(7) the charge was transferred to the juvenile court under
§ 4-202 of this article; or
(8) the person:
(i) is convicted of only one criminal act, and that act is
not a crime of violence; and
(ii) is granted a full and unconditional pardon by the
Governor.
(b) Where petition filed. —
(1) Except as provided
in paragraphs (2) and (3) of this subsection, a person
shall file a petition in the court in which the proceeding
began.
(2) If the proceeding began in one court and was
transferred to another court, the person shall file the
petition in the court to which the proceeding was
transferred.
(3)
(i) If the proceeding in a court of original
jurisdiction was appealed to a court exercising appellate
jurisdiction, the person shall file the petition in the
appellate court.
(ii) The appellate court may remand the matter to the court
of original jurisdiction.
(c) Time of filing. —
(1) Except as provided in
paragraph (2) of this subsection, a petition for
expungement based on an acquittal, a nolle prosequi, or a
dismissal may not be filed within 3 years after the
disposition, unless the petitioner files with the petition
a written general waiver and release of all the
petitioner's tort claims arising from the charge.
(2) A petition for expungement based on a probation before
judgment or a stet with the requirement of drug or alcohol
abuse treatment may not be filed earlier than the later of:
(i) the date the petitioner was discharged from probation
or the requirements of obtaining drug or alcohol abuse
treatment were completed; or
(ii) 3 years after the probation was granted or stet with
the requirement of drug or alcohol abuse treatment was
entered on the docket.
(3) A petition for expungement based on a nolle prosequi
with the requirement of drug or alcohol treatment may not
be filed until the completion of the required treatment.
(4) A petition for expungement based on a full and
unconditional pardon by the Governor may not be filed later
than 10 years after the pardon was signed by the Governor.
(5) Except as provided in paragraph (2) of this subsection,
a petition for expungement based on a stet or a compromise
under § 3-207 of the Criminal Law Article may not be filed
within 3 years after the stet or compromise.
(6) A court may grant a petition for expungement at any
time on a showing of good cause.
(d) Period for objection by State's
Attorney. — (1) The court shall have a copy of a
petition for expungement served on the State's Attorney.
(2) Unless the State's Attorney files an objection to the
petition for expungement within 30 days after the petition
is served, the court shall pass an order requiring the
expungement of all police records and court records about
the charge.
(e) Hearing on expungement. —
(1) If the State's
Attorney files a timely objection to the petition, the
court shall hold a hearing.
(2) If the court at the hearing finds that the person is
entitled to expungement, the court shall order the
expungement of all police records and court records about
the charge.
(3) If the court finds that the person is not entitled to
expungement, the court shall deny the petition.
(4) The person is not entitled to expungement if:
(i) the petition is based on the entry of probation before
judgment, a nolle prosequi, or a stet, including a nolle
prosequi with the requirement of drug or alcohol treatment
or a stet with the requirement of drug or alcohol abuse
treatment, or the grant of a pardon by the Governor; and
(ii) the person:
1. since the full and unconditional pardon or entry, has
been convicted of a crime other them a minor traffic
violation; or
2. is a defendant in a pending criminal proceeding.
(f) Notice of compliance. — Unless an order is
stayed pending an appeal, within 60 days after entry of the
order, every custodian of the police records and court
records that are subject to the order of expungement shall
advise in writing the court and the person who is seeking
expungement of compliance with the order.
(g) Appellate review. —
(1) The State's Attorney
is a party to the proceeding.
(2) A party aggrieved by the decision of the court is
entitled to appellate review as provided in the Courts
Article.
Because of the important consequences involved, it is recommended you consult with a local attorney.
Please see the statutes below for applicability. The following are MD statutes:
§ 7-101 CRIM. LAW Definitions.
(a) In general. — In this part the following
words have the meanings indicated.
(b) Deception. —
(1) "Deception" means knowingly
to:
(i) create or confirm in another a false impression that
the offender does not believe to be true;
(ii) fail to correct a false impression that the offender
previously has created or confirmed;
(iii) prevent another from acquiring information pertinent
to the disposition of the property involved;
(iv) sell or otherwise transfer or encumber property
without disclosing a lien, adverse claim, or other legal
impediment to the enjoyment of the property, regardless of
whether the impediment is of value or a matter of official
record;
(v) insert or deposit a slug in a vending machine;
(vi) remove or alter a label or price tag;
(vii) promise performance that the offender does not intend
to perform or knows will not be performed; or
(viii) misrepresent the value of a motor vehicle offered
for sale by tampering or interfering with its odometer, or
by disconnecting, resetting, or altering its odometer with
the intent to change the mileage indicated.
(2) "Deception" does not include puffing or false
statements of immaterial facts and exaggerated
representations that are unlikely to deceive an ordinary
individual.
(c) Deprive. — "Deprive" means to withhold
property of another:
(1) permanently;
(2) for a period that results in the appropriation of a
part of the property's value;
(3) with the purpose to restore it only on payment of a
reward or other compensation; or
(4) to dispose of the property or use or deal with the
property in a manner that makes it unlikely that the owner
will recover it.
(d) Exert control. —
(1) "Exert control" includes
to take, carry away, appropriate to a person's own use or
sell, convey, or transfer title to an interest in or
possession of property.
(2) "Exert control" does not include:
(i) to trespass on the land of another; or
(ii) to occupy the land of another without authorization.
(e) Interactive computer service. — (1)
"Interactive computer service" means an information
service, system, or access software provider that provides
or enables computer access by multiple users to a computer
server.
(2) "Interactive computer service" includes a service or
system that provides access to the Internet.
(f) Motor vehicle. — "Motor vehicle" has the
meaning stated in § 11-135 of the Transportation Article.
(g) Obtain. — "Obtain" means:
(1) in relation to property, to bring about a transfer of
interest in or possession of the property; and
(2) in relation to a service, to secure the performance of
the service.
(h) Owner. — Except as otherwise expressly
provided in this part, "owner" means a person, other than
the offender:
(1) who has an interest in or possession of property
regardless of whether the person's interest or possession
is unlawful; and
(2) without whose consent the offender has no authority to
exert control over the property.
(i) Property. — (1) "Property" means anything of
value.
(2) "Property" includes:
(i) real estate;
(ii) money;
(iii) a commercial instrument;
(iv) an admission or transportation ticket;
(v) a written instrument representing or embodying rights
concerning anything of value, or services, or anything
otherwise of value to the owner;
(vi) a thing growing on or affixed to, or found on land, or
part of or affixed to any building;
(vii) electricity, gas, and water;
(viii) a bird, animal, or fish that ordinarily is kept in a
state of confinement;
(ix) food or drink;
(x) a sample, culture, microorganism, or specimen;
(xi) a record, recording, document, blueprint, drawing,
map, or a whole or partial copy, description, photograph,
prototype, or model of any of them;
(xii) an article, material, device, substance, or a whole
or partial copy, description, photograph, prototype, or
model of any of them that represents evidence of, reflects,
or records a secret:
1. scientific, technical, merchandising, production, or
management information; or
2. designed process, procedure, formula, invention, trade
secret, or improvement;
(xiii) a financial instrument; and
(xiv) information, electronically produced data, and a
computer software or program in a form readable by machine
or individual.
(j) Property of another. — "Property of another"
means property in which a person other than the offender
has an interest that the offender does not have the
authority to defeat or impair, even though the offender
also may have an interest in the property.
(k) Service. — "Service" includes:
(1) labor or professional service;
(2) telecommunication, public utility, toll facility, or
transportation service;
(3) lodging, entertainment, or restaurant service; and
(4) the use of computers, data processing, or other
equipment.
(l) Slug. — "Slug" means an object that, because
of its size, shape, or other quality, can be deposited or
inserted in a vending machine as an improper substitute for
the payment required to operate the vending machine.
(m) Theft. —
(1) "Theft" means the conduct
described in §§ 7-104 through 7-107 of this subtitle.
(2) "Theft" includes motor vehicle theft, unless otherwise
indicated.
(n) Vending machine. — "Vending machine" means a
device designed to receive a specified payment and in
exchange automatically offer, provide, assist in providing,
or allow a person to acquire property or service.
§ 7-102 CRIM. LAW Construing conduct described as theft; knowing
conduct.
(a) Interpretation of part. — Conduct described as theft in this
part constitutes a single crime and includes the separate crimes formerly
known as:
(1) larceny;
(2) larceny by trick;
(3) larceny after trust;
(4) embezzlement;
(5) false pretenses;
(6) shoplifting; and
(7) receiving stolen property.
(b) Knowing conduct. —
(1) A person acts "knowingly":
(i) with respect to conduct or a circumstance as described by a statute
that defines a crime, when the person is aware of the conduct or that the
circumstance exists;
(ii) with respect to the result of conduct as described by a statute
that defines a crime, when the person is practically certain that the
result will be caused by the person's conduct; and
(iii) with respect to a person's knowledge of the existence of a
particular fact, if that knowledge is an element of a crime, when the
person is practically certain of the existence of that fact.
(2) The terms "knowing" and "with knowledge" are construed in the same
manner.