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HEAD NOTE S: Stubb s v. State , No. 86, September Term, 2007

CRIMINAL LAW; CONSOLIDATED THEFT STATUTE; THEFT OF PROP ERTY OR SE RVIC ES W ITH A VALU E OF L ESS TH AN $10 0: Unless a defendant has been specifically charged with theft under $100, (1) the defendant cannot be convicted of that offense, (2) a conviction for theft under $500 does not require proof that the defendant stole property or services worth at least $100, and (3) the penalty for theft under $100 does not limit the sentence that can be imposed on the defendant convicted of theft under $500.

IN THE COURT OF APPEALS OF MARYLAND No. 86 September Term, 2007

STEVEN STUBBS v. STATE OF MARYLAND

Bell, C.J. *Raker Harrell Battaglia Greene Murphy Cathell, D ale R. (Retire d, specially assigned), JJ.

Opinion by Murphy, J. Filed: September 9, 2008

*Raker, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, she also participated in the decision and adoption of this opinion.

By Chapter 130, Acts of 2004, Maryland's Consolidated Theft Statute was amended to add the offense of theft of property or services with a value of less than $100 ("theft under $100"). It is clear from the legislative history that this offense was created (in the words of the FLOOR REPORT of Senate Bill 513, which was passed by the General Assembly and signed by the Governor on April 27, 2004) "in an attempt to keep some relatively minor theft-related cases before the District Court." It is also clear that the General Assembly intended that, unless this new offense was specifically charged by the State , the offense of theft under $100 would not be a lesser included offense of theft of property or services with a value of less than $500 ("theft under $500"). The following provisions h ave been "on the bo oks" since October 1, 2004: Section 7-104(g) of the Criminal Law Article, in pertinent part, provides: (2) Excep t as provide d in paragra phs (3) and (4) of this subsection, a person convicted of theft of property or services with a value of less than $500, is guilty of a misdemeanor and: (i) is subject to imprisonment not exceeding 18 months or a fine not exceeding $500 or both; and (ii) shall restore the property taken to the owner or pay the owner the value of the property or services. (3) A pers on conv icted of thef t of proper ty or services w ith a value of less than $100 is guilty of a misdemeanor and: (i) is s ubje ct to i mprison men t not exce edin g 90 days or a fine not exceeding $500 or both; and (ii) shall restore the property taken to the owner or pay the owner the value of the property or services. *** Section 7-103 of the Criminal Law Article, in pertinent part, provides: (a) "Value" defined. -- In this section, "value" means:

(1) the market value of the property or service at the time and place of the crime; or (2) if the market value cannot satisfactorily be ascertained, the cost of the replacement of the property or service within a reasonable time after the crime. *** (e) When value cannot be determined. -- (1) For the purposes of determining whether a theft violation subject to either

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