Senate Bill 2859

(As Passed the Senate)

AN ACT TO AMEND SECTION 97-17-70, MISSISSIPPI CODE OF 1972, TO REVISE DEFENSES TO A CHARGE OF RECEIVING STOLEN PROPERTY; TO AMEND SECTION 97-23-93, MISSISSIPPI CODE OF 1972, TO ALLOW FOR AGGREGATION OF MULTIPLE OFFENSES IN DETERMINING THE GRAVITY OF CERTAIN OFFENSES OF SHOPLIFTING; TO CREATE THE CRIMES OF FALSELY USING OR PRODUCING RETAIL SALES RECEIPTS AND UNIVERSAL PRODUCT CODES; TO CRIMINALIZE THE USE OF A SCANNING DEVICE OR REENCODER TO CAPTURE ENCODED INFORMATION FROM A MAGNETIC STRIP ON A CREDIT, DEBIT OR OTHER PAYMENT CARD WITH INTENT TO DEFRAUD; TO AMEND SECTION 97-17-75, MISSISSIPPI CODE OF 1972, TO REVISE THE PENALTY FOR REMOVAL OR SALE OF PERSONAL PROPERTY SUBJECT TO A LIEN; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 97-17-70, Mississippi Code of 1972, is amended as follows:

97-17-70. (1) A person commits the crime of receiving stolen property if he intentionally possesses, receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is possessed, received, retained or disposed of with intent to restore it to the owner.

(2) (a) The fact that the person who stole the property has not been convicted, apprehended or identified is not a defense to a charge of receiving stolen property.

(b) The fact that the property was obtained by means other than through the commission of an offense amounting to theft if the property was explicitly represented to the accused as being obtained through the commission of an offense amounting to theft is not a defense to a charge of receiving stolen property.

(3) Any person who shall be convicted of receiving stolen property which exceeds Five Hundred Dollars ($500.00) in value shall be committed to the custody of the State Department of Corrections for a term not exceeding ten (10) years or by a fine of not more than Ten Thousand Dollars ($10,000.00), or both.

(4) Any person who shall be convicted of receiving stolen property which does not exceed Five Hundred Dollars ($500.00) in value shall be punished by imprisonment for not more than six (6) months or by a fine of not more than One Thousand Dollars ($1,000.00), or both.

SECTION 2. Section 97-23-93, Mississippi Code of 1972, is amended as follows:

97-23-93. (1) Any person who shall willfully and unlawfully take possession of any merchandise owned or held by and offered or displayed for sale by any merchant, store or other mercantile establishment with the intention and purpose of converting such merchandise to his own use without paying the merchant's stated price therefor shall be guilty of the crime of shoplifting and, upon conviction, shall be punished as is provided in this section.

(2) The requisite intention to convert merchandise without paying the merchant's stated price for the merchandise is presumed, and shall be prima facie evidence thereof, when such person, alone or in concert with another person, willfully:

(a) Conceals the unpurchased merchandise;

(b) Removes or causes the removal of unpurchased merchandise from a store or other mercantile establishment;

(c) Alters, transfers or removes any price-marking, any other marking which aids in determining value affixed to the unpurchased merchandise, or any tag or device used in electronic surveillance of unpurchased merchandise;

(d) Transfers the unpurchased merchandise from one container to another; or

(e) Causes the cash register or other sales recording device to reflect less than the merchant's stated price for the unpurchased merchandise.

(3) Evidence of stated price or ownership of merchandise may include, but is not limited to:

(a) The actual merchandise or the container which held the merchandise alleged to have been shoplifted; or

(b) The content of the price tag or marking from such merchandise; or

(4) Any merchant or his agent or employee may testify at a trial as to the stated price or ownership of merchandise.

(5) A person convicted of shoplifting merchandise for which the merchant's stated price is less than or equal to Five Hundred Dollars ($500.00) shall be punished as follows:

(a) Upon a first shoplifting conviction the defendant shall be guilty of a misdemeanor and fined not more than One Thousand Dollars ($1,000.00), or punished by imprisonment not to exceed six (6) months, or by both such fine and imprisonment.

(b) Upon a second shoplifting conviction the defendant shall be guilty of a misdemeanor and fined not more than One Thousand Dollars ($1,000.00) or punished by imprisonment not to exceed six (6) months, or by both such fine and imprisonment.

(6) Upon a third or subsequent shoplifting conviction the defendant shall be guilty of a felony and fined not more than Five Thousand Dollars ($5,000.00), or imprisoned for a term not exceeding five (5) years, or by both such fine and imprisonment.

(7) A person convicted of shoplifting merchandise for which the merchant's stated price exceeds Five Hundred Dollars ($500.00) shall be guilty of a felony and, upon conviction, punished as provided in Section 97-17-41 for the offense of grand larceny.

(8) In determining the number of prior shoplifting convictions for purposes of imposing punishment under this section, the court shall disregard all such convictions occurring more than seven (7) years prior to the shoplifting offense in question.

(9) For the purpose of determining the gravity of the offense under subsections (6) and (7) of this section, the prosecutor may aggregate the value of merchandise shoplifted from three (3) or more separate mercantile establishments over a period of thirty (30) or fewer days.

SECTION 3. (1) A person who, with intent to cheat or defraud a retailer, possesses, uses, utters transfers, makes, alters, counterfeits or reproduces a retail sales receipt or a universal product code label commits a misdemeanor which shall be punished, upon conviction thereof, by imprisonment not to exceed one (1) year, a fine not to exceed Five Thousand Dollars ($5,000.00), or both.

(2) A person who, with intent to cheat or defraud a retailer, possesses fifteen (15) or more retail sales receipts or a universal product code labels or possesses a device the purpose of which is to manufacture fraudulent retail sale receipts or universal product code labels commits a felony punishable, upon conviction thereof, by imprisonment not to exceed five (5) years, a fine not to exceed Ten Thousand Dollars ($10,000.00), or both.

SECTION 4. (1) For the purposes of this section the following terms shall have the meanings ascribed to them unless the context clearly requires otherwise:

(a) "Cardholder" means any person:

(i) Named on the face of a credit card to whom or for whose benefit the credit card is issued by an issuer; or

(ii) In possession of a credit card with the consent of the person to whom the credit card was issued.

(b) "Credit card" means:

(i) Any instrument or device, whether known as a credit card, charge card, credit plate, courtesy card, identification card or any other name that is issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services or anything else of value, either on credit or in consideration of an undertaking or guaranty by the issuer of the payment of a check drawn by the cardholder, on a promise to pay in part or in full therefor at a future time, whether or not all or any part of the indebtedness that is represented by the promise to make deferred payment is secured or unsecured.

(ii) A debit card, electronic benefit transfer card or other access instrument or device, other than a check that is signed by the holder or other authorized signatory on the deposit account, that draws funds from a deposit account in order to obtain money, goods, services or anything else of value.

(iii) A stored value card, smart card or other instrument or device that enables a person to obtain goods, services or anything else of value through the use of value stored on the card instrument or device.

(iv) The number that is assigned the card, instrument or device, even if the physical card, instrument or device is not used or presented.

(c) "Issuer" means any business organization, state agency or financial institution, or its duly authorized agent, that issues a credit card.

(d) "Merchant" means a person who is authorized under a written contract with a participating party to furnish money, goods, services or anything else of value on presentation of a credit card by a cardholder.

(e) "Reencoder" means an electronic device that places encoded information from the magnetic strip or stripe of a credit card onto the magnetic strip or stripe of a different credit card.

(f) "Scanning device" means a scanner, reader or other electronic device that is used to access, read, scan, obtain, memorize or store, temporarily or permanently, information that is encoded on a magnetic strip or stripe of a credit card.

(2) (a) It is unlawful for a person to use a scanning device or reencoder without the permission of the cardholder of the credit card from which the information is being scanned or reencoded with the intent to defraud the cardholder, the issuer or a merchant.

(b) A person who violates this section commits a felony punishable, upon conviction thereof, by imprisonment not to exceed five (5) years, a fine not to exceed Ten Thousand Dollars ($10,000.00), or both.

SECTION 5. Section 97-17-75, Mississippi Code of 1972, is amended as follows:

97-17-75. Any person who shall remove, or cause to be removed, or aid or assist in removing from the county in which it may be, any personal property which may be the subject of a pledge, mortgage, deed of trust, conditional sales contract, lien of a lessor of lands, or lien by judgment, or any other lien of which such party has notice, without the consent of the holder of such encumbrance or lien, or who shall conceal or secrete such property, or who shall sell or dispose of the same or any part thereof without the consent of the mortgagee or beneficiary, or conditional vendor, with intent to defraud the holder of the encumbrance or lien, whether any of these acts shall be done before or after the maturity of the debt secured by the lien, and shall not immediately discharge such encumbrance or lien or pay to the holder of such lien or encumbrance the value of such property in event same is less than the amount of such lien or encumbrance, shall, upon conviction, be imprisoned in the custody of the Department of Corrections not more than three (3) years, or be fined not more than Five Thousand Dollars ($5,000.00), or both.

SECTION 6. This act shall take effect and be in force from and after July 1, 2005.