Identity Theft Defense in Miami

These cases are built on paper and data, and paper and data can be read more than one way. Who actually used the information? Was there consent? Is the dollar figure right? Are those really separate people? Dennis Gonzalez Jr. is a former Miami-Dade prosecutor who has been defending people since 2012, in state and federal court. Our office answers 24 hours a day.

Fraudulent Use of Personal Identification Information (Section 817.568)

Florida's main identity theft law covers a person who "willfully and without authorization fraudulently uses, or possesses with intent to fraudulently use, personal identification information concerning another person without first obtaining that person's consent."

What counts as personal identification information. The statute's list is broad: a name, address, email address, phone number, Social Security number, date of birth, mother's maiden name, driver license or ID number, alien registration number, passport number, employer or taxpayer ID number, Medicaid or food assistance account number, bank account number, credit or debit card number, or debit card PIN; biometric data such as fingerprints or voice prints; a unique electronic identification number, address, or routing code; medical records; telecommunication identifying information or an access device; and any other number or information that can be used to access a person's financial resources.

The penalty tiers. The base offense is a third-degree felony. It climbs with the amount involved (the benefit gained, the value of services received, the payment avoided, or the amount of the injury or fraud) or with the number of people whose information was used:

In the statute's words, the people tiers are "10 or more persons, but fewer than 20 persons" and "20 or more persons, but fewer than 30 persons." The statute says the court "shall" impose the mandatory minimum "notwithstanding any other provision of law," and it must be imposed even if it is longer than the maximum sentence the law or the Criminal Punishment Code would otherwise allow.

Other ways the charge goes up:

• Victim's age or status. Using the information of someone under 18 or 60 or older is a second-degree felony. So is using the information of a disabled adult, a public servant, a veteran, a first responder, or an employee of the State of Florida or of the federal government.
• Parent, guardian, or custodian. A parent, guardian, or person with custodial authority who fraudulently uses the information of a child or of a person 60 or older commits a second-degree felony.
• Public records. If the offense was facilitated or furthered by use of a public record, it moves up one degree (a misdemeanor becomes a third-degree felony, and so on, up to a first-degree felony).
• Impersonation. If, to get or use the information, the person pretended to be a law enforcement officer, or an employee or representative of a bank, credit card company, credit counseling company, or credit reporting agency, or falsely claimed to be helping the victim with a credit problem, the offense moves up one degree (a first-degree felony becomes a life felony).

Related offenses in the same statute:

• Deceased people and dissolved businesses. Using or possessing the information of a deceased person or a dissolved business entity carries the same structure: a third-degree felony, rising to the 3, 5, and 10-year minimum tiers by amount or number.
• Counterfeit or fictitious information. Creating, using, or possessing counterfeit or fictitious identification information, for a fictitious person or a real person without consent, to commit or facilitate a fraud is a third-degree felony.
• Harassment. Using someone's information for the purpose of harassing them is a first-degree misdemeanor.

Money on top of any sentence. A $1,001 surcharge applies to any guilty or no-contest plea or finding of guilt, even if adjudication is withheld, and the court cannot waive it. The court may also order restitution, which the statute says can include the victim's attorney's fees and costs of clearing their credit.

Time limits. For the main offenses (subsections (2), (6), and (7)), prosecution must begin within 3 years after the offense. The statute extends that to 1 year after an aggrieved party discovers the offense, as long as charges are brought within 5 years.

Where the case can be filed. Venue may be in any county where an element of the offense occurred, including the county where the victim generally resides. The statewide prosecutor can also bring these cases.

Cooperation. The statute lets the prosecutor ask the court to reduce or suspend the sentence of a person who provides substantial assistance in identifying or convicting others. That is a decision with serious consequences, and it should never be made without a lawyer.

Unlawful Possession of Someone Else's Identification Information (Section 817.5685)

A separate law makes it a crime to "intentionally or knowingly possess, without authorization," another person's Social Security number, driver license or ID number, alien registration number, passport number, employer or taxpayer ID number, Medicaid or food assistance account number, bank account number, credit or debit card number, or medical records, in any form, including mail, documents, ID cards, or digital files.

• Possessing the information of "four or fewer persons" is a first-degree misdemeanor.
• Possessing the information of "five or more persons" is a third-degree felony.
• With five or more people, the statute creates an inference that the possession was knowing, intentional, and unauthorized, "unless satisfactorily explained."

Who the law does not cover. It does not apply to a parent or guardian holding a child's information, a court-appointed guardian with authority over the information, a government employee or a lawful business holding information in the ordinary course of business, or a person who finds a government-issued card or document and promptly returns it to the owner, the issuing agency, or the police.

Affirmative defenses written into the statute. It is a defense if the person reasonably believed the possession was authorized by law or by the other person's consent, or got the information from a forum or resource open to the public or from a public record.

Credit Card Offenses (Sections 817.60, 817.61, 817.611)

Florida's credit card crimes are graded by a separate penalty section: some are first-degree misdemeanors and others third-degree felonies.

• Credit card theft (taking a card without the cardholder's consent, or receiving it knowing it was taken, with intent to use, sell, or transfer it; or keeping a card you know was lost, mislaid, or misdelivered with that intent) is a first-degree misdemeanor. So is buying or selling another person's card, taking a card as security for a debt with intent to defraud, and signing another person's card with intent to defraud.
• Dealing in cards of others (receiving two or more cards in different names within 12 months, with reason to know they were stolen) is a third-degree felony.
• Credit card forgery (falsely making, embossing, or altering a card, or possessing a counterfeit card or its sales draft or other representation, with intent to defraud) is a third-degree felony. Possessing two or more counterfeit cards is presumed to be a violation unless you are an authorized manufacturer or issuer.
• Unlawful possession of a stolen credit or debit card, knowing it was taken without consent and intending to impede its recovery, is a third-degree felony. Retailers and retail employees are excluded when they handle a card in the ordinary course of business without knowing it was stolen, or keep a card they know is stolen to investigate the theft.
• Fraudulent use of a credit card is a first-degree misdemeanor if, within any 6-month period, the card was used two or fewer times or less than $100 was obtained. More than two uses, or $100 or more, makes it a third-degree felony.
• Trafficking in or possessing counterfeit credit cards or "related documents" (which includes an unauthorized credit card number) within any 6-month period: 5 to 14, and 15 to 49, are each a second-degree felony (the 15-to-49 tier is ranked higher on Florida's sentencing chart); 50 or more is a first-degree felony.

Federal Identity Theft (18 U.S.C. §§ 1028 and 1028A)

Identity cases in South Florida are often federal, especially when they involve government benefits, banks, the mail, or many victims.

Section 1028 covers producing, transferring, or possessing identification documents, false identification documents, document-making implements, and authentication features, and knowingly transferring, possessing, or using another person's "means of identification" to commit, aid, or abet, or in connection with, a federal crime or a state felony. Maximum terms depend on the conduct: up to 15 years for certain offenses (for example, producing or transferring U.S. government-issued IDs, birth certificates or driver licenses, or obtaining $1,000 or more in a year through use of another's identification); up to 5 years for others; up to 20 years if committed to facilitate a drug trafficking crime, in connection with a crime of violence, or after a prior conviction under the section becomes final; up to 30 years for terrorism; and up to 1 year in any other case.

Section 1028A, aggravated identity theft, applies to someone who, "during and in relation to" one of the federal felonies the statute lists, "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." The listed felonies include mail, bank, and wire fraud, many federal fraud and false-statement offenses, theft of public money, passport, visa, citizenship, and immigration offenses, false statements to buy a firearm, and certain Social Security Act offenses.

The penalty is unusual. The statute says the person "shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years." The court cannot give probation. The 2 years cannot run at the same time as any other sentence, including the sentence for the underlying fraud, except that the court has discretion to run it alongside other aggravated identity theft counts imposed at the same time. And the judge cannot shorten the fraud sentence to make up for it. (A terrorism version carries 5 years.)

Because the 2 years is fixed, whether the government can prove each element of § 1028A, and whether that count is part of any resolution, often matters more than anything else in a federal identity case.

How We Defend Identity Theft Cases

• Authorization and consent. The Florida statute requires use "without authorization" and without the person's consent. Family members, business partners, employees, and roommates often share information. What permission existed, and who gave it, is frequently the case.
• Intent to defraud. Having someone's information is not, by itself, fraudulent use. The State must prove the fraudulent purpose the statute requires.
• Who was at the keyboard. Shared phones, shared computers, shared accounts, and spoofed or borrowed IP addresses make attribution a real question. We look at device data, account logins, and the investigator's assumptions.
• The math. The mandatory minimums turn on dollar amounts and on head counts. We check how the government added the money and counted the people, whether amounts are real losses or just attempts, and whether a "person" on the list is truly a separate individual.
• Searches and seizures. Phones, laptops, and cloud accounts are often searched under warrants. If a search went beyond what the law allowed, we move to suppress. See Motions to Suppress.
• Time and venue. We check whether the charge was filed within the statute's time limits and in a proper county.
• The statutory defenses. For possession charges under section 817.5685, the exclusions and affirmative defenses in the statute itself can decide the case.

For computer-based charges such as hacking or online offenses, see Cyber Crimes Defense. For insurance, health care, and other fraud schemes, see Fraud & Financial Crimes Defense and Economic Crimes.

Bond, Turning Yourself In, and Immigration

• Bond. Many identity theft arrests are bondable, but the amount and conditions can be steep in federal cases or when many victims are alleged. See Bond & Nebbia Hearings.
• Warrants and target letters. If you learn there is a warrant, or you receive a target letter or a call from an agent, we can often arrange a planned surrender instead of an arrest at your home or job. See Turning Yourself In.
• Immigration. For non-citizens, fraud and identity convictions can carry serious immigration consequences. Under federal immigration law, fraud or deceit with a loss to the victim or victims of more than $10,000 is on the "aggravated felony" list. Talk to us before any plea. See Immigration Consequences.

What to Do if You Are Investigated or Charged

1. Do not talk to detectives or federal agents without a lawyer, even to "clear things up."
2. Do not delete files, messages, or accounts. Destroying evidence can become its own crime.
3. Do not contact the people named as victims.
4. Gather what shows permission or a legitimate reason: emails, texts, contracts, payroll or business records, and names of people who know the arrangement.
5. Call us before you answer any questions.

Why Choose Dennis Gonzalez Law, P.A.

• Former Miami-Dade prosecutor.
• Defending people since 2012.
• Super Lawyers recognition and an Avvo Rating of 10.0.
• Bilingual office — se habla español.
• We answer 24 hours a day. Call (305) 209-0384.

Frequently Asked Questions

Is identity theft always a felony in Florida?

Fraudulent use of another person's identification information under section 817.568 starts as a third-degree felony. Possessing another person's information under section 817.5685 is a misdemeanor for four or fewer people and a felony for five or more. Using someone's information only to harass them is a misdemeanor.

What are the mandatory minimums?

Under section 817.568: 3 years at $5,000 or more or 10 to 19 people; 5 years at $50,000 or more or 20 to 29 people; 10 years at $100,000 or more or 30 or more people.

What is aggravated identity theft?

A federal crime under 18 U.S.C. § 1028A. It adds a 2-year prison term that must be served on top of the sentence for the underlying federal felony, with no probation.

The person gave me their information. Is that a defense?

Consent and authorization go to the heart of the charge. How permission was given, and whether it covered what you did, are facts we investigate carefully.

Can the court waive the $1,001 surcharge?

No. The statute says the surcharge may not be waived.

How fast can you help?

Our office answers 24 hours a day. Call (305) 209-0384.