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When a theft crime like embezzlement is being sentenced, the actual loss is what’s relevant to the sentencing. Actual loss is the value of what was actually stolen. The intended loss doesn’t have an impact on the sentencing. If a person intended to steal more than they did, that doesn’t matter unless they made an active attempt to steal more. Conversely, if a person intended to give the money back or didn’t intend to steal as much as they did, that doesn’t matter. All that matters is the impact.
The charge brought against you in a theft crime is chiefly determined by the loss. The loss will determine whether the crime is a misdemeanor or felony. It will also determine the class of felony or misdemeanor and the degree of criminal behavior. All of these factors combined will bring you to minimum and maximum sentencing guidelines written in the law books. A judge will choose the sentence from somewhere in this sentencing range.
If you’ve been accused of a theft crime, it’s important to talk to a theft attorney as soon as possible. They can examine the evidence of the case and determine whether the amount of loss you’ve been accused of is accurate. From there, they can create a strategic defense to mitigate the charges and potential sentencing.
The monetary value of loss will first determine what class of misdemeanor or felony the theft is:
For a class E felony, the prison sentence is anywhere from one and one third to four years. For a class D felony, the prison sentence ranges from two and one third to seven years in prison. For a class C felony, the prison sentence ranges from five to fifteen years in prison. A class B felony has a minimum prison sentence of eight years, and a maximum potential sentence of twenty-five years.
If you possess stolen money or property, this is considered a crime by itself. The charge brought against you would be criminal possession of stolen property. In these cases, the classes and degrees of the offense remain the same with regards to loss amounts.
Criminally possessing stolen property in the fourth, third, second, or first degree is a felony similar to theft-related felonies. The difference is that the person who possesses the property doesn’t need to have actually committed the theft. They just need to be aware that they are intentionally possessing stolen property. Someone can be charged with possession and not theft, or theft and not possession. Some people might also have both charges brought against them.
Actual loss is what matters to a theft case. This is the amount of money or property that was actually, measurably lost. When property was stolen, the prosecution will create an estimation of the loss based on the value of the property. The potential loss might also play a role in the prosecution’s case and the judge’s ruling.
Potential loss is loss that a company or person might have sustained due to the crime, but that cannot be proven through documentation. Potential loss tends to be part of a prosecution’s case if the number is much higher than the amount of loss that can be concretely proven.
Potential loss can’t be proven beyond a reasonable doubt. Because of this, the accused cannot be convicted of having stolen that amount. A good defense lawyer will poke holes in a prosecutor’s unproven loss analysis. However, discussion of potential loss can color a judge and jury’s opinion on the case. The prosecution may place emotional weight on the potential loss even if they can’t prove it on paper.
When potential loss is introduced in a case, it affects how the judge views the amount that was stolen, the property that was stolen, and the way in which it was stolen. The defendant must be prepared to be confronted by potential loss. During plea negotiations, potential loss will often be part of what’s discussed. Embezzlement lawyers are well-versed in how to build a case using both facts and emotional weight. They can consider the prosecution’s argument and the facts of your case to create a defense that mitigates your potential sentence.
An estimation of loss is done in a theft crime to determine the degree of the crime. However, the prosecution must have all the documentation to prove that their estimation is reasonable. A good embezzlement lawyer will double-check and question the estimation to make sure all the facts are straight.