MISSISSIPPI LEGISLATURE
2003 Regular Session
To: Judiciary B
By: Representative Blackmon
AN ACT TO REVISE THE THRESHOLD FOR PETIT AND GRAND LARCENY AND SIMILAR CRIMES; TO AMEND SECTION 97-17-41, MISSISSIPPI CODE OF 1972, TO REVISE THE VALUE AND PENALTIES FOR GRAND LARCENY; TO AMEND SECTION 97-17-42, MISSISSIPPI CODE OF 1972, TO REVISE LARCENY OF MOTOR VEHICLES; TO AMEND SECTION 97-17-43, MISSISSIPPI CODE OF 1972, TO REVISE THE VALUE AND PENALTIES FOR PETIT LARCENY; TO AMEND SECTION 97-17-70, MISSISSIPPI CODE OF 1972, TO REVISE THE VALUE AND PENALTIES FOR RECEIVING STOLEN PROPERTY; TO AMEND SECTION 97-19-39, MISSISSIPPI CODE OF 1972, TO CONFORM FALSE PRETENSE TO SUCH VALUE AND PENALTIES; TO AMEND SECTION 97-21-33, MISSISSIPPI CODE OF 1972, TO CONFORM FORGERY TO SUCH VALUE AND PENALTIES; TO AMEND SECTION 97-23-19, MISSISSIPPI CODE OF 1972, TO CONFORM EMBEZZLEMENT TO SUCH VALUE AND PENALTIES; TO AMEND SECTION 97-23-93, MISSISSIPPI CODE OF 1972, TO REVISE THE VALUE AND PENALTIES FOR SHOPLIFTING; TO REPEAL SECTION 99-19-17, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR SENTENCING FOR EMBEZZLEMENT BASED ON THE VALUE OF THE PROPERTY AS PETIT LARCENY; TO CREATE THE OFFENSE OF HOME REPAIR FRAUD; TO ENACT EXCEPTIONS; TO ENACT DEFINITIONS; TO PRESCRIBE THE ELEMENTS OF THE OFFENSE AND THE PUNISHMENT THEREFOR; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-17-41, Mississippi Code of 1972, is amended as follows:
97-17-41. (1) * * * Every person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the value of Five Hundred Dollars ($500.00) or more, shall be guilty of grand larceny, and shall be imprisoned in the Penitentiary for a term not exceeding ten (10) years; or shall be fined not more than Ten Thousand Dollars ($10,000.00), or both.
(2) Every person who shall be convicted of taking and carrying away, feloniously, the property of a church, synagogue, temple or other established place of worship, of the value of Five Hundred Dollars ($500.00) or more, shall be guilty of grand larceny, and shall be imprisoned in the Penitentiary for a term not exceeding ten (10) years, or shall be fined not more than Ten Thousand Dollars ($10,000.00), or both.
* * *
SECTION 2. Section 97-17-42, Mississippi Code of 1972, is amended as follows:
97-17-42. (1) Any person who shall, willfully and without authority, take possession of or take away a motor vehicle belonging to another, and any person who knowingly shall aid and abet in such taking possession or taking away, shall be guilty of a felony and shall be punished by commitment to the Department of Corrections for not more than five (5) years.
(2) Any person convicted under this section who causes damage to any motor vehicle shall be ordered by the court to pay restitution to the owner or owners of any such motor vehicle.
(3) This section shall not apply to the enforcement of a security interest in a motor vehicle.
(4) Any person who shall be convicted for a second or subsequent offense of taking and carrying away, feloniously, a motor vehicle which is the personal property of another, of any value, shall be guilty of grand larceny, and shall be imprisoned in the Penitentiary for a term not exceeding ten (10) years or shall be fined not more than Ten Thousand Dollars ($10,000.00), or both.
SECTION 3. Section 97-17-43, Mississippi Code of 1972, is amended as follows:
97-17-43. (1) If any person shall feloniously take, steal and carry away any personal property of another under the value of Five Hundred Dollars ($500.00), he shall be guilty of petit larceny and, upon conviction, shall be punished by imprisonment in the county jail not exceeding six (6) months or by fine not exceeding One Thousand Dollars ($1,000.00), or both.
(2) If any person shall feloniously take, steal and carry away any property of a church, synagogue, temple or other established place of worship under the value of Five Hundred Dollars ($500.00), he shall be guilty of petit larceny and, upon conviction, shall be punished by imprisonment in the county jail not exceeding one (1) year or by fine not exceeding Two Thousand Dollars ($2,000.00), or both.
(3) Any person who leaves the premises of an establishment at which motor fuel offered for retail sale was dispensed into the fuel tank of a motor vehicle by driving away in that motor vehicle without having made due payment or authorized charge for the motor fuel so dispensed, with intent to defraud the retail establishment, shall be guilty of petit larceny and punished as provided in subsection (1) of this section and, upon any second or subsequent such offense, the driver's license of the person shall be suspended as follows:
(a) The person shall submit the driver's license to the court upon conviction and the court shall forward the driver's license to the Department of Public Safety.
(b) The first suspension of a driver's license under this subsection shall be for a period of six (6) months.
(c) A second or subsequent suspension of a driver's license under this subsection shall be for a period of one (1) year.
(d) At the expiration of the suspension period, and upon payment of a restoration fee of Twenty-five Dollars ($25.00), the suspension shall terminate and the Department of Public Safety shall return the person's driver's license to the person. The restoration fee shall be in addition to the fees provided for in Title 63, Chapter 1, and shall be deposited into the State General Fund in accordance with Section 45-1-23.
SECTION 4. 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) 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.
(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 5. Section 97-19-39, Mississippi Code of 1972, is amended as follows:
97-19-39. (1) Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, with a value of less than Five Hundred Dollars ($500.00), upon conviction thereof, shall be guilty of a misdemeanor and punished by imprisonment * * * in the county jail not exceeding six (6) months, and by fine not exceeding One Thousand Dollars ($1,000.00).
(2) Every person, who with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, with a value of Five Hundred Dollars ($500.00) or more, upon conviction thereof shall be guilty of a felony and punished by imprisonment in the State Penitentiary not exceeding ten (10) years, and by a fine not exceeding Ten Thousand Dollars ($10,000.00).
SECTION 6. Section 97-21-33, Mississippi Code of 1972, is amended as follows:
97-21-33. Persons convicted of forgery shall be punished by imprisonment in the Penitentiary for a term of not less than two (2) years nor more than ten (10) years, or by a fine of not more than Ten Thousand Dollars ($10,000.00), or both; provided, however, that when the amount of value involved is less than Five Hundred Dollars ($500.00) in lieu of the punishment above provided for, the person convicted may be punished by imprisonment in the county jail for a term of not more than six (6) months, or by a fine of not more than One Thousand Dollars ($1,000.00), or both, within the discretion of the court.
SECTION 7. Section 97-23-19, Mississippi Code of 1972, is amended as follows:
97-23-19. If any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bailee, or any clerk, agent or servant of any private person, shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his office, place, or employment, either in mass or otherwise, with a value of Five Hundred Dollars ($500.00) or more, he shall be guilty of felony embezzlement, and, upon conviction thereof, shall be imprisoned in the Penitentiary not more than ten (10) years, or fined not more than Ten Thousand Dollars ($10,000.00), or both. If the value of such goods, rights in action, money or other valuable security, effects, or property of any kind is less than Five Hundred Dollars ($500.00), he shall be guilty of misdemeanor embezzlement, and, upon conviction thereof, shall be imprisoned in the county jail not more than six (6) months, or fined not more than One Thousand Dollars ($1,000.00), or both.
SECTION 8. Section 97-23-93, Mississippi Code of 1972, is amended as follows:
97-23-93. (1) Any person who shall wilfully 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, wilfully:
(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
(c) Properly identified photographs of such merchandise.
(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.
SECTION 9. Section 99-19-17, Mississippi Code of 1972, which provides for sentencing for embezzlement based on the value of the property as petit larceny, is repealed.
SECTION 10. (1) As used in this section, unless the context clearly requires otherwise:
(a) "Home repair" means the fixing, replacing, altering, converting, modernizing, improving of or the making of an addition to any real property primarily designed or used as a residence.
(i) Home repair shall include the construction, installation, replacement or improvement of driveways, swimming pools, porches, kitchens, chimneys, chimney liners, garages, fences, fallout shelters, central air conditioning, central heating, boilers, furnaces, hot water heaters, electrical wiring, sewers, plumbing fixtures, storm doors, storm windows, awnings and other improvements to structures within the residence or upon the land adjacent thereto.
(ii) Home repair shall not include the sale, installation, cleaning or repair of carpets; the sale of goods or materials by a merchant who does not directly or through a subsidiary perform any work or labor in connection with the installation or application of the goods or materials; the repair, installation, replacement or connection of any home appliance including, but not limited to, disposals, refrigerators, ranges, garage door openers, television antennas, washing machines, telephones or other home appliances when the person replacing, installing, repairing or connecting such home appliance is an employee or agent of the merchant that sold the home appliance; or landscaping.
(b) "Person" means any individual, partnership, corporation, business, trust or other legal entity.
(c) "Residence" means a single or multiple family dwelling, including, but not limited to, a single family home, apartment building, condominium, duplex, townhouse or mobile home which is used or intended to be used by its occupants as their dwelling place.
(2) A person commits the offense of home repair fraud when he knowingly:
(a) Enters into an agreement or contract, written or oral, with a person for home repair, and he knowingly:
(i) Misrepresents a material fact relating to the terms of the contract or agreement or the preexisting or existing condition of any portion of the property involved, or creates or confirms another's impression which is false and which he does not believe to be true, or promises performance which he does not intend to perform or knows will not be performed;
(ii) Uses or employs any deception, false pretense or false promises in order to induce, encourage or solicit such person to enter into any contract or agreement;
(iii) Misrepresents or conceals either his real name, the name of his business or his business address; or
(iv) Uses deception, coercion or force to obtain the victim's consent to modification of the terms of the original contract or agreement;
(b) Damages the property of a person with the intent to enter into an agreement or contract for home repair; or
(c) Misrepresents himself or another to be an employee or agent of any unit of the federal, state or municipal government or any other governmental unit, or an employee or agent of any public utility, with the intent to cause a person to enter into, with himself or another, any contract or agreement for home repair.
(3) Intent and knowledge shall be determined by an evaluation of all circumstances surrounding a transaction and the determination shall not be limited to the time of contract or agreement.
(4) Substantial performance shall not include work performed in a manner of little or no value or work that fails to comply with the appropriate municipal, county, state or federal regulations or codes.
(5) Violation of this section shall be punished as follows:
(a) A first conviction under this section shall be a misdemeanor and shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00) or imprisonment in the county jail not to exceed six (6) months, or both.
(b) A second or subsequent conviction under this section shall be punished as follows:
(i) By imprisonment in the custody of the Department of Corrections not to exceed two (2) years when the amount of the fraud is more than One Thousand Dollars ($1,000.00) but less than Five Thousand Dollars ($5,000.00).
(ii) By imprisonment in the custody of the Department of Corrections not to exceed five (5) years when the amount of the fraud is Five Thousand Dollars ($5,000.00) or more, but less than Ten Thousand Dollars ($10,000.00).
(iii) By imprisonment in the custody of the Department of Corrections not to exceed ten (10) years when the amount of the fraud is Ten Thousand Dollars ($10,000.00) or more.
(iv) As a misdemeanor punishable by imprisonment in the county jail for not more than six (6) months when the amount of the fraud is One Thousand Dollars ($1,000.00) or less.
(6) In addition to any other sentence it may impose, the court shall order that the defendant shall make restitution to the victim, either within a specified period of time or in specified installments. The order shall not be enforceable during the period of imprisonment unless the court expressly finds that the defendant has assets to pay the amounts ordered at the time of sentencing. Intentional refusal to obey the restitution order or a failure by a defendant to make a good faith effort to make such restitution may be considered a violation of the defendant's probation and may be cause for revocation of his probation or suspension of sentence.
SECTION 11. This act shall take effect and be in force from and after July 1, 2003.