15.5 RESISTING RECOVERY OF STOLEN PROPERTY
§ 812.015(6), Fla. Stat.
To prove the crime of Resisting Recovery of Stolen Property, the State must prove the following five elements beyond a reasonable doubt:
1.	(Defendant) [was committing] [or] [had a committed] a theft of property from (name of owner or custodian of property).
2.	During or after the theft, (victim) made a reasonable effort to recover the property. 
3.	(Defendant) resisted (victim’s) effort to recover the property.
4.	At the time of (defendant’s) resistance, (victim) had probable cause to believe (defendant) had concealed or removed the property from [its place of display] [(place where property had been kept)].
5.	At the time of the resistance, (victim) was a [merchant] [merchant’s employee] [law enforcement officer]. 
Definitions.
§ 812.014(1), Fla. Stat.
A “theft” occurs when someone knowingly and unlawfully obtains or uses or endeavors to obtain or to use the property of another and does so with intent to, either temporarily or permanently, deprive the person of his or her right to the property or any benefit from it or to appropriate the property to his or her own use or to the use of any person not entitled to it. 
§ 812.012(4), Fla. Stat. 
“Property” means anything of value, and includes tangible personal property.
§ 812.015(1), Fla. Stat. 
“Merchant” means an owner or operator, or the agent, consignee, employee, lessee, or officer of an owner or operator, of any premises or apparatus used for retail purchase or sale of any merchandise.
§ 812.015(1), Fla. Stat.
“Merchandise” means any personal property, capable of manual delivery, displayed, held, or offered for retail sale by a merchant.
Maryland v. Pringle, 540 U.S. 366 (2003); State v. Neumann, 567 So. 2d 950 (Fla. 4th DCA 1990).
“Probable cause” is not capable of a precise quantification into percentages because it depends on an assessment of probabilities in a particular factual context. The term “probable cause” does not mean more likely true than false. Instead, “probable cause” is a practical, common sense determination, given the totality of circumstances, including a person’s knowledge, training and experience, as to whether there was a fair probability for a person to believe a certain fact is true.
Affirmative Defense. § 812.015(6), Fla. Stat. 
The statute and case law are silent as to 1) which party bears the burden of persuasion of the affirmative defense and 2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence. The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction.  See the opinions in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.
It is a defense to the crime of Resisting Recovery of Stolen Property if, at the time of the resistance, (defendant) did not know or did not have reason to know that (victim) was a [merchant] [merchant’s employee] [law enforcement officer]. 
If burden of persuasion is on the defendant:
If you find that defendant proved (insert appropriate burden of persuasion) that [he] [she] did not know or did not have reason to know that (victim) was a [merchant] [merchant’s employee] [law enforcement officer], you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that [he] [she] did not know or did not have reason to know that (victim) was a [merchant] [merchant’s employee] [law enforcement officer], you should find [him] [her] guilty, if all the elements of the charge have been proven beyond a reasonable doubt.  
If burden of persuasion is on the State:
If you find that the State proved (insert appropriate burden of persuasion) that the defendant knew or had reason to know that (victim) was a [merchant] [merchant’s employee] [law enforcement officer], you should find [him] [her] guilty, if all of the elements of the charge have been proven beyond a reasonable doubt.  However, if you are not convinced (insert appropriate burden of persuasion) that the defendant knew or had reason to know that (victim) was a [merchant] [merchant’s employee] [law enforcement officer], you should find [him] [her] not guilty.

Lesser Included Offenses
RESISTING RECOVERY OF STOLEN PROPERTY - 812.015(6)
CATEGORY ONE	CATEGORY TWO	FLA. STAT.	INS. NO	
Petit theft - second degree*		812.014(3)(a)	14.1	
	Attempt	777.04(1)	5.1	
	Petit theft - first degree*	812.014(2)(e)	14.1	
	Battery	784.03	8.3	
	Assault	784.011	8.1	
Comments
*§ 812.015(6), Fla. Stat., states: “For purposes of this section the charge of theft and the charge of resisting may be tried concurrently.” In Stuckey v. State, 972 So. 2d 918 (Fla. 5th DCA 2007), the court interpreted that to mean that a defendant can be prosecuted and convicted for both Resisting a Merchant and Theft without offending double jeopardy. Accordingly, if Theft is charged as a separate count, then Theft should not be given as a lesser-included offense of 
Resisting a Merchant. If, however, the jurors are being instructed on Resisting a Merchant as a lesser-included offense of Robbery, then Theft should be given as a lesser-included offense.
“Law enforcement officer” is not defined in chapter 812, Florida Statutes, or in case law interpreting § 812.015(6), Fla. Stat. Trial judges may consult § 790.01, Fla. Stat., § 934.02, Fla. Stat., and § 943.10, Fla. Stat. in deciding whether and how to define “law enforcement officer” for the jury.
This instruction was adopted in 2015.