In Georgia, the offense of theft by conversion occurs when a person, who, having lawfully obtained funds or property of another person, converts the funds or property to their own personal use. The person who obtains the funds lawfully does so under an agreement to apply or dispose of the funds in a specific manner. However, that person converts the funds to a personal use other than the use to which the parties agreed.
Theft by conversion is a crime in the state of Georgia. The crime can be punished as either a misdemeanor or a felony, depending upon the value of the funds or property converted. The crime carries penalties that include both fines and jail or prison time.
In the crime of ordinary theft or larceny, the thief takes the money illegally; in theft by conversion the defendant has a right to possession of the property or money but then converts it to their own use without the permission of the owner.
Theft by conversion could arise in a rental situation where a person rents a piece of equipment or even a motor vehicle. The person is legally entitled to take possession of the property per the rental agreement, so the person’s possession is perfectly legal, at least initially. However, if, when the rental term expires, the person fails to return the property, then the person has committed theft by conversion.
What Are the Elements of Theft by Conversion in Georgia?
In order to prove a felony charge of theft by conversion in Georgia the following elements must be proven beyond a reasonable doubt:
- The defendant obtained the funds or property of another person in some legal manner.
- A typical example is when the defendant, as an employee, is entrusted with the funds of an employer. Or, an agent may be entrusted with the funds of a principal. For example, a defendant who works as an accountant may be entrusted with cash given to them by their employer for the purpose of depositing the cash in the employer’s business bank account.
- The obtaining of the funds or property happens per an agreement or known legal obligation.
- This means that the defendant and the other person are parties to an agreement that makes the defendant’s initial receipt of the funds completely lawful.
- The agreement calls for the defendant to make an application of such funds or disposition of such property, usually for the benefit of the owner of the funds or property.
- For instance, the agreement may call for a defendant who is a payroll manager to take funds from his employer and use them to pay the salaries of their employer’s workers.
- The defendant, instead, knowingly converts the funds or property to their own use in violation of the agreement or legal obligation, without the owner’s consent.
- For example, the defendant, instead of applying the funds to payroll, takes the money and purchases a two-week vacation in Hawaii for himself.
For the defendant to be convicted, a jury must find that the defendant had the intent to convert the money or property to their own use; that is, the defendant had fraudulent intent. Intent may be inferred from the totality of the circumstances.
In other words, the prosecution does not have to prove that the defendant said, “I intended to take my employer’s money and wrongfully convert it to my own uses.” Rather, the jury can infer this from the circumstances of the defendant’s criminal conduct. The jury must consider all circumstances associated with the crime, including the defendant’s words, conduct, motive, and credibility.
What Are the Penalties for Theft by Conversion in Georgia?
The penalties for theft by conversion depend upon the value of the funds or property converted. Penalties may be calculated as followed:
- If the funds or property that were converted exceed $24,999.99 in value, the crime is considered a felony; it is punishable by a term of imprisonment of from 2 to 20 years;
- If the funds or property that were the subject of the theft have a value of between $1500.01-$4999.99, the crime is again considered to be a felony. The penalty is imprisonment for a term of between one to five years. The judge has the discretion to regard the crime as a misdemeanor, which generally carries penalties of up to 12 months in jail and a maximum fine of $1,000.00;
- If the funds or property that were converted have a value of anywhere between $5,000.00-$24,999.99, the theft by conversion is again considered to be a felony, to be punished by 1 to 10 years of imprisonment. The judge has the discretion to regard the crime as a misdemeanor, which generally carries penalties of up to 12 months in jail and a maximum fine of $1,000.00.
Finally, if the funds or property converted have a value of $1,500 or less, the crime is regarded as a misdemeanor. The punishment for misdemeanor theft by conversion is up to 12 months in jail and a maximum fine of $1,000.00.
Are There Any Defenses to the Crime of Theft by Conversion in Georgia?
There are affirmative defenses to the crime of theft by conversion. They include the following:
- The defendant was unaware that the funds or property belonged to another person;
- The defendant acted under an honest claim of right to the funds or property involved;
- The defendant acted under a right to dispose of the property as they did. This would mean that the defendant had the legal right to dispose of the property as they did, or the defendant had the owner’s permission to do as they did.
What Is Not Considered a Valid Defense?
The following are not defenses to the crime of theft by conversion:
- A defendant’s assertion that they simply broke a contract, so did not commit theft by conversion;
- This defense will fail, provided fraudulent intent can be proven. Theft by conversion is not a mere breaking of a contract; It is an act of fraud that deprives an owner of their lawful right to property.
- A defendant’s assertion that they eventually returned the funds or property;
- This defense will not succeed, because, as theft by conversion is defined, the theft is considered complete upon the act of conversion. As long as the defendant had the intent to convert the property, and did convert the property, the crime has been committed. Returning the property does not undo the crime.
However, if the property is returned, even if the court refuses to accept this as a defense to the crime, it might lead the court to show leniency in sentencing. So, if the property is available to the defendant to be returned to its rightful owner, it would probably be a good idea to return it.
Should I Contact a Georgia Lawyer if I’m Facing Theft by Conversion Charges?
If you are charged with theft by conversion, you should consider an experienced Georgia criminal defense attorney. This attorney can analyze the facts of your particular situation and advise you of your rights and options. The lawyer can also represent you in negotiations, at hearings and at trial.
Theft by conversion is a serious crime and can lead to prison time, so it is a good idea to consult with an experienced criminal defense attorney in order to get the best result.