shoplift 3rd offense

do you have to have two prior shoplifing charges to get a third offense or can it be theft, recieving or stolen

Asked on May 18, 2009 under Criminal Law, Nebraska

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

That depends on each state's sentencing guidelines, which may even be different per county or court in terms of practice.  Review the following and then consult with your public defender.  If you prefer to hire private criminal defense counsel, try www.attorneypages.com and then check his or her record at the Nebraska State Bar.

What were the amounts of your priors and for the current?

Section 28-105
Felonies; classification of penalties; sentences; where served; eligibility for probation.
(1) For purposes of the Nebraska Criminal Code and any statute passed by the Legislature after the date of passage of the code, felonies are divided into nine classes which are distinguished from one another by the following penalties which are authorized upon conviction:

    Class I felony ................Death
    Class IA felony ...............Life imprisonment without parole
    Class IB felony ...............Maximum - life imprisonment
     Minimum - twenty years imprisonment
    Class IC felony ...............Maximum - fifty years imprisonment
     Mandatory minimum - five years imprisonment
    Class ID felony ...............Maximum - fifty years imprisonment
     Mandatory minimum - three years imprisonment
    Class II felony ...............Maximum - fifty years imprisonment
     Minimum - one year imprisonment
    Class III felony ..............Maximum - twenty years imprisonment, or twenty-five thousand dollars fine, or both
     Minimum - one year imprisonment
    Class IIIA felony .............Maximum - five years imprisonment, or ten thousand dollars fine, or both
     Minimum - none
    Class IV felony ...............Maximum - five years imprisonment, or ten thousand dollars fine, or both
     Minimum - none

(2) All sentences of imprisonment for Class IA, IB, IC, ID, II, and III felonies and sentences of one year or more for Class IIIA and IV felonies shall be served in institutions under the jurisdiction of the Department of Correctional Services. Sentences of less than one year shall be served in the county jail except as provided in this subsection. If the department certifies that it has programs and facilities available for persons sentenced to terms of less than one year, the court may order that any sentence of six months or more be served in any institution under the jurisdiction of the department. Any such certification shall be given by the department to the State Court Administrator, who shall forward copies thereof to each judge having jurisdiction to sentence in felony cases.

(3) Nothing in this section shall limit the authority granted in sections 29-2221 and 29-2222 to increase sentences for habitual criminals.

(4) A person convicted of a felony for which a mandatory minimum sentence is prescribed shall not be eligible for probation.

Section 28-510
Consolidation of theft offenses.

Conduct denominated theft in sections 28-509 to 28-518 constitutes a single offense embracing the separated offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and the like. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under sections 28-509 to 28-518, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of the court to insure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

 

Section 28-511.01
Theft by shoplifting; penalty; photographic evidence.

(1) A person commits the crime of theft by shoplifting when he or she, with the intent of appropriating merchandise to his or her own use without paying for the same or to deprive the owner of possession of such property or its retail value, in whole or in part, does any of the following:

(a) Conceals or takes possession of the goods or merchandise of any store or retail establishment;

(b) Alters the price tag or other price marking on goods or merchandise of any store or retail establishment;

(c) Transfers the goods or merchandise of any store or retail establishment from one container to another;

(d) Interchanges the label or price tag from one item of merchandise with a label or price tag for another item of merchandise; or

(e) Causes the cash register or other sales recording device to reflect less than the retail price of the merchandise.

(2) In any prosecution for theft by shoplifting, photographs of the shoplifted property may be accepted as prima facie evidence as to the identity of the property. Such photograph shall be accompanied by a written statement containing the following:

(a) A description of the property;

(b) The name of the owner or owners of the property;

(c) The time, date, and location where the shoplifting occurred;

(d) The time and date the photograph was taken;

(e) The name of the photographer; and

(f) Verification by the arresting officer.

The purpose of this subsection is to allow the owner or owners of shoplifted property the use of such property during pending criminal prosecutions.

Prior to allowing the use of the shoplifted property as provided in this section, legal counsel for the alleged shoplifter shall have a reasonable opportunity to inspect and appraise the property and may file a motion for retention of the property, which motion shall be granted if there is any reasonable basis for believing that the photographs and accompanying affidavit may be misleading.


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