Florida/Georgia Personal Injury & Workers Compensation

...Miller, Jacksonville, amicus *23 curiae on behalf of Florida Ass'n of Criminal Defense Lawyers (FACDL). HARDING, Justice. We have for review State v. Cuda, 622 So.2d 502 (Fla. 5th DCA 1993), in which the Fifth District Court of Appeal expressly declared section 415.111(5), Florida Statutes (1991), valid....

...We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. We quash the district court decision because we find that the statute is unconstitutional. James Cuda was charged with one count of abuse of an aged person by exploitation in violation of section 415.111(5)....

...t," and is thus unconstitutionally vague. 622 So.2d at 504. However, the district court stated that based on the definition of "illegal act" found in Gates v. Chrysler Corp., 397 So.2d 1187, 1190 (Fla. 4th DCA 1981), the use of the word "illegal" in section 415.111(5) is constitutional....

...Rodriquez. Rodriquez had the federal laws as a backdrop, thus providing the requisite notice to make the statute constitutional. However, like Locklin, there are no other statutes in the instant case to lend meaning to the vague language employed in section 415.111(5). As in Locklin, this statute purports to criminalize any "illegal" act in using or managing the funds of an aged person. Further, section 415.111(5) also suffers from the same constitutional infirmities noted by this Court in Locklin....

...This Court acknowledges that there are seven other states with similar statutes. [2] Four of these statutes, Louisiana, North Carolina, Texas, and Washington, define "exploitation" in the same manner as the Florida statute. However, there are critical differences between those statutes and section 415.111(5)....

...uch assistance, is not subject to criminal liability. Id. at para. 5/16-1.3(e). In contrast, the Florida statute contains no clear explanation of the proscribed conduct, no explicit definition of terms, nor any good faith defense. Therefore, we find section 415.111(5) to be unconstitutionally vague. Accordingly, we quash the decision below and remand for proceedings consistent with this opinion. It is so ordered. GRIMES, C.J., and OVERTON, SHAW and KOGAN, JJ., concur. McDONALD, Senior Justice, dissents. NOTES [1] Section 415.111(5), Florida Statutes (1991), provides: A person who knowingly or willfully exploits an aged person or disabled adult by the improper or illegal use or management of the funds, assets, property, power of attorney, or guardianship of su...

...Category 4: Violent personal crimes: Chapters 784 and 836, and section 843.01, and subsection 381.411(4). Category 5: Burglary: Chapter 810, section 817.025, and subsection 806.13(3). Category 6: Thefts, forgery, fraud: Sections 192.037 and 206.56, chapters 322 and 409, section 370.142, section 415.111, chapter 443, section 493.3175, sections 494.0018, 496.413, and 496.417, chapter 509, subsections 585.145(3) and 585.85(2), section 687.146, and chapters 812 (except section 812.13), 815, 817, 831, and 832....

...However, for the reasons discussed in Reyes, 655 So.2d 111, we must continue to require strict compliance with the existing statutes. Accordingly, we affirm the judgment and sentence; strike the costs of prosecution, and remand for further proceedings. BLUE, A.C.J., and WHATLEY, J., concur. NOTES [1] Section 415.111(3), Florida Statutes (1989).

...Antoine for providing “false” documents which allowed Taime’s voluntary admission to the facility which allowed his release without notifying family members, which directly led to his death. Secondly, it alleged a cause of action for abuse of a vulnerable adult pursuant to section 415.111, Florida Statutes (2010)....

...Id.; see also Surloff v. Regions Bank, 179 So.3d 472, 476 (Fla. 4th DCA 2015) (noting that, there is no liability for another’s suicide unless a special duty of care is assumed by taking care and custody of the person). 2 As to the count alleging a violation of section 415.1111, Florida Statutes (2010), we agree with appellees that Chapter 415 does not apply in this instance....

...In each case, appellant pled guilty to grand theft in violation of sections 812.014(1), (2)(b) and (c), Florida Statutes, organized scheme to defraud in violation of section 817.034(4)(a)(2), Florida Statutes, and exploitation of the elderly in violation of section 415.111(5), Florida Statutes (1991)....

...The court's order was clear that all of the stated reasons for departure were found to be present. On appeal, appellant claims that (1) the trial court's reasons for departure are invalid; (2) the convictions for both grand theft and fraud violate double jeopardy prohibitions; and (3) section 415.111, Florida Statutes (1991), is unconstitutional. We find that appellant's conviction under section 415.111(5), Florida Statutes (1991), requires reversal based upon the supreme court's holding that that statute is unconstitutionally vague....

...error which can be raised for the first time on appeal, even after a guilty plea. Alexander v. State, 450 So.2d 1212 (Fla. 4th DCA 1984). We are therefore compelled to reverse appellant's convictions for exploitation *1121 of the elderly pursuant to section 415.111, Florida Statutes (1991)....

...l of this matter. Rodriguez v. State, 622 So.2d 1084 (Fla. 4th DCA 1993); Ford v. State, 556 So.2d 483 (Fla. 2d DCA 1990). We therefore reverse and remand with directions that the trial court dismiss the charges brought against appellant pursuant to section 415.111, Florida Statutes (1991), and resentence accordingly....

...The ward and guardian were co-trustees of the marital trust. In November 2007, the guardian filed a verified complaint against the ward’s two sisters, her nephew, daughter, and the ward’s niece. The complaint alleged counts for: (1) elderly exploitation pursuant to section 415.111, Florida Statutes, and fraud against the defendants; and (2) undue influence against the ward’s sister Dorothy....

...Butterworth, Atty. Gen., Tallahassee, and Susan D. Dunlevy, Asst. Atty. Gen., Tampa, for appellee. ALTENBERND, Judge. Karen Deranger appeals her convictions and sentences for three counts of grand theft and for exploitation of an aged person under section 415.111(5), Florida Statutes (1991)....

...of exploitation of the aged. [1] The trial court sentenced Ms. Deranger to 3 1/2 years' imprisonment for exploitation and to three consecutive terms of probation, totalling 25 years for the counts of grand theft. The supreme court has recently held section 415.111(5), Florida Statutes (1991), unconstitutionally vague....

...In the present case, in determining whether the term "lawful purpose" is unconstitutionally vague, we must look to see if our statutes, or any other material or usage outside of the statutes, give meaning to that particular term. In Cuda v. State, 639 So.2d 22 (Fla.1994), our supreme court held that the term "illegal use" in section 415.111(5), which made it a third-degree felony to exploit an aged person or disabled adult "by the improper or illegal use or management of the funds, assets, property, power of attorney, or guardianship" of that person was unconstitutionally vague....

...ry factor considered by a court in determining whether a cause of action exists when a statute does not expressly provide for one." Id. We note that in the 1995 amendment to chapter 415, the legislature included a section entitled "Civil Penalties," section 415.1111....

...This section also provides victims with a private cause of action against the perpetrator of the abuse. But this section provides no civil penalties against those who merely fail to report an incident. Rather, misdemeanor penalties are provided in section 415.111 for violation of the mandatory reporting requirements....

...Petersburg, for appellee Longboat. ALTENBERND, Judge. In these consolidated cases, the state appeals orders dismissing one count of a two-count complaint. In both cases, the defendants were charged with grand theft and financial exploitation of an aged person pursuant to section 415.111(5), Florida Statutes (1991). The trial court dismissed the charge of exploitation. We affirm. The defendants allegedly have used highpressure sales tactics or fraudulent schemes to convince older people to pay exorbitant prices for emergency response systems. Section 415.111(5) states: A person who knowingly or willfully exploits an aged person or disabled adult by the improper or illegal use or management of the funds, assets, property, power of attorney, or guardianship of such aged person or disabled adult for profit, commits a felony of the third degree....

...The state appeals an order dismissing an information based upon defendant's motion made pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). For the following reasons, we affirm. Count I of the information in question charged Carlos Betancourt with abuse, neglect, or torture of an aged person, contrary to section 415.111(3), Florida Statutes (1991)....

...Defense Lawyers, Tallahassee, and Donnie Murrell, Jr., Florida Ass'n of Crim. Defense Lawyers, West Palm Beach, amicus curiae. PETERSON, Judge. We have consolidated these two appeals because they have as a common issue the determination by the respective trial courts that section 415.111(5), Florida Statutes (1991), is unconstitutionally vague....

...To punish those who would exploit the impaired elderly citizens of this state by diverting those elderly persons' funds for their own purposes and profit, the legislature enacted the following statutory provisions that were considered by the trial courts in the instant cases: Section 415.111(5), Florida Statutes (1991): A person who knowingly or willfully exploits an aged person ......

...n aged person's or disabled adult's funds, assets, or property or the use of an aged person's ... power-of-attorney or guardianship for another's or one's own profit or advantage. The trial courts focused upon the words "improper or illegal" to find section 415.111(5) unconstitutionally vague....

...versus improper or illegal?" The trial courts also noted that no standards of management or investment nor standard jury instructions have been promulgated to suggest the conduct that would incur criminal liability. The only reported case construing section 415.111(5) is a recent Second District case. In State v. Dyer, 607 So.2d 482 (Fla. 2d DCA 1992), the defendants were charged with grand theft and financial exploitation of an aged person pursuant to section 415.111(5) for using high pressure sales tactics or fraudulent schemes to convince aged victims to pay exorbitant prices for emergency response systems....

...Chrylser Corp., 397 So.2d 1187, 1190 (Fla. 4th DCA 1981), the court defined "illegal act," as that term is used in section 320.64(4), Florida Statutes (1979), as an act that subjects one to criminal penalties. We view the use of the word "illegal" in section 415.111(5) in the same manner *505 and hold that one who commits a criminal act involving use or management of an aged person's funds with the purpose of profiting from the illegality is sufficiently put on notice that such conduct is proscribed by the statute in issue....

...slature would have passed the one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken. Waldrup v. Dugger, 562 So.2d 687, 693 (Fla. 1990) (quoting Cramp, 137 So.2d at 830). We apply the Cramp test to section 415.111(5): (1) Separation of unconstitutional provisions from the remaining valid provisions. We find that deletion of the words "improper or" from section 415.111(5) as well as section 415.102(9), when the latter *506 section is used for the purposes of defining the word "exploits" in the former, can clearly be separated from the remaining provisions with no effect....

...A complete act remains after the minor deletion that directly outlaws financial exploitation of the aged persons in a way that harmonizes with the Adult Protective Services Act. After applying the Cramp test, we find that the word "improper" is severable from section 415.111(5) and should be deleted....

...and section 826.04 Category 3: Robbery: Section 812.13 Category 4: Violent personal crimes: Chapters 784 and 836 and section 843.01 Category 5: Burglary: Chapter 810 and subsection 806.13(3) Category 6: Thefts, forgery, fraud: Chapters 322 and 409, section 415.111, chapter 443, section 493.3175, and chapters 509, 812 (except section 812.13), 815, 817, 831, and 832 Category 7 Drugs: Chapter 893 Category 8 Weapons: Chapter 790 and section 944.40 Category 9 All other felony offenses *772 [[Image h...

PER CURIAM. We reverse Appellant’s conviction, vacate the sentence, and remand with directions that he be discharged under section 415.111, Florida Statutes (1991)....

...: Chapters 784 and 836 and section 843.01 and subsection 381.411(4) Category 5: Burglary: Chapter 810, section 817.025, and subsection 806.13(3) Category 6: Thefts, forgery, fraud: Sections 192,037 and 206.56, Cchapters 322 and 409, section 370.142, section 415.111, chapter 443, section 493.3175, sections 494.0018, 496.413 and 496,417, and chapters 509, subsections 585.145(3) and 585.85(2), section 687.146, and chapters 812 (except section 812.13), 815, 817, 831, and 832 Category 7: Drugs: Chapt...

...*1085 Category 4: Violent personal crimes: Section 231.06, chapters 784 and 836, and section 843.01, and subsection 381.411(4). Category 5: Burglary: Chapter 810, section 817.025, and subsection 806.13(3). Category 6: Thefts, forgery, fraud: Sections 192.037 and 206.56, chapters 322 and 409, section 370.142, section 415.111, chapter 443, section 493.3175, sections 494.0018, 496.413, and 496.417, chapter 509, subsection 517.301(l)(a), subsections 585.145(3) and 585.85(2), section 687.146, and chapters 812 (except section 812.13), 815, 817, 831, and 832....

...ry 3: Robbery: Section 812.13 Category 4: Violent personal crimes: Chapters 784 and 836 and section 843.01 and subsection 381.411(4) Category 5: Burglary: Chapter 810 and subsection 806.13(3) Category 6: Thefts, forgery, fraud: Chapters 322 and 409, section 415.111, chapter 443, section 493.3175, and chapters 509, 812 (except section 812.13), 815, 817, 831, and 832 Category 7: Drugs: Chapter 893 Category 8: Weapons: Chapter 790 and section 944.40 Category 9: All other felony offenses [[Image her...

person and disabled adult, in violation of section 415.111(5), Florida Statutes (1991). On June 30, 1994

...The trial court denied the motion because it was found to be untimely; that is, filed more than two years after his judgment and sentence became final. Fla. R.Crim. P. 3.850(b). We reverse. In this case, Ayres was charged with exploitation of the elderly, a violation of section 415.111(5), Florida Statutes....

...On January 17, 1992, he pled no contest to the charge. Adjudication of guilt was withheld, restitution was ordered, and Ayres was placed on five years probation. At a hearing held on August 15, 1994, the public defender moved to withdraw Ayres’ plea because section 415.111(5) had been declared unconstitutional by the Florida Supreme Court in a decision rendered on June 30, 1994....

...3 She was tried, but the trial ended in a mistrial. The State filed an amended information charging Starling with grand theft of the third degree. The State amended the information to delete the exploitation charge because the statute that Starling had been prosecuted on previously, section 415.111, Florida Statutes, was declared unconstitutionally vague....

...se. § 812.014, Fla.Stat. We affirm. AFFIRMED. PETERSON, C.J. and W. SHARP, J., concur. .Chick owned a checking account with several thousand dollars in the account when she met Starling. Starling never deposited any of her money into the account. . § 415.111(5), Fla.Stat....

PER CURIAM. We review Williams’ appeal from conviction of exploitation of an aged person pursuant to section 415.111(5), Florida Statutes, and from convictions of two counts of grand theft and one count of petit theft. We reverse the appellant’s conviction for violation of section 415.111(5) and vacate the sentence therefor....

...State, 642 So.2d 1206 (Fla. 1st DCA 1994). We affirm, however, the trial court’s denial of the motion for judgment of acquittal as to the theft counts. See State v. Law, 559 So.2d 187, 189 (Fla. 1986). In light of our reversal of appellant’s conviction under section 415.111(5), Florida Statutes, appellant’s double jeopardy claim is moot....

added). Failure to report is a misdemeanor. Id. § 415.111(1). It is now the obligation of banks, savings

...hua County. Monica J. Brasington, Judge. July 15, 2019 B.L. THOMAS, J., Appellant/Cross Appellee Specialty Hospital-Gainesville appeals a final judgment awarding Appellee/Cross Appellant Charles Barth damages under section 415.1111, Florida Statutes, which provides a cause of action for a vulnerable adult against “any perpetrator” where the vulnerable adult has been “abused, neglected, or exploited as specified in this chapter” (emphasis added)....

...Barth after he was treated at Specialty Hospital of Gainesville. We reverse in both appeals. We hold that under Bohannon v. Shands Teaching Hosp. & Clinics, Inc., 2 an allegation of medical negligence subject to the statutory requirements of chapter 766, Florida Statutes, cannot form the basis of a claim under section 415.1111, Florida Statutes....

...s a “caregiver,” as those terms are defined in section 415.102, Florida Statutes. Specialty Hospital moved to dismiss Count II, arguing that it described medical negligence and therefore could not support a cause of action under Bohannon and section 415.1111, Florida Statutes....

...Barth’s calls for medical assistance. The jury awarded damages on this claim in the amount of $25,000. The jury found that punitive damages were not warranted. Specialty moved to set aside the verdict, and the trial court denied the motion. Mr. Barth moved for attorneys’ fees under section 415.1111, Florida Statutes, following the verdict. Analysis I....

...and other provisions of chapter 766, the claim cannot be asserted under chapter 415; if the claim asserts non-medical negligence or criminal conduct, it can be asserted under chapter 415. That statute refers to “perpetrators” for a reason. § 415.1111, Fla. Stat. (2018). The entire legislative scheme of chapter 415 is to punish “perpetrators” of abuse, neglect or exploitation, not medical negligence. Id. The overarching and critical sentence in section 415.1111, Florida Statutes, reads as follows: “A vulnerable adult who has been abused, neglected or exploited 4 as specified in this chapter has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect or exploitation.” (Emphasis added). Supporting our decision in Bohannon, and our analysis here, the legislature in the 4 Both parties agree that Specialty was not liable for any exploitation of Mr. Barth. 9 immediately preceding subsection of 415.1111, Florida Statutes provides that: “A person who knowingly and willfully fails to report a case of known or suspected abuse, neglect, or exploitation of a vulnerable adult, or who knowingly and willfully prevents another person from doing so...

...al personal injury suit.” Stuart v. Hertz Corp., 351 So. 2d 703, 706 (Fla. 1977) (emphasis added). The same logic applies here: the complex issues of medical negligence under chapter 766 cannot be permitted to be litigated as a parallel suit under section 415.1111, Florida Statutes, designed to address a completely different type of wrongful conduct. We recognize section 415.1111, Florida Statutes, states that the “remedies provided in this section are in addition to and cumulative with other legal and administrative remedies provided to a vulnerable adult.” But this sentence cannot be logically interpret...

...2d 935, 936 (Fla.1st DCA 1988) (“Although failure to obtain informed consent may also constitute a technical battery, labeling the act an intentional tort does not change the action from what it is, a species of medical negligence”). The allegations here are all “species of medical negligence.” While the sentence in section 415.1111, Florida Statutes, provides that its remedies are “cumulative” to other legal and administrative remedies, this 11 language must be interpreted to refer to remedies outside of chapter 766, Florid...

...But the responses and restraints were part of Plaintiff’s medical treatment, and they required a degree of medical skill or judgment. See Townes, 242 So. 3d at 309. The assertions regarding the restraint lie in medical negligence, not abuse or neglect as prohibited in section 415.1111, Florida Statutes. Appellee’s claims were contained within his suit for damages from medical malpractice and could not be maintained as a separate count for damages resulting from alleged abuse or neglect of a vulnerable adult under chapter 415....

...consideration of the competing interests in preventing such claims from unduly interfering with the effective delivery of complex professional medical care while preserving patients’ constitutional rights to access to courts. We do not hold that claims under section 415.1111, Florida Statutes, could never be asserted against a hospital or health-care provider....

...As this court recognized in Bohannon, such claims could be maintained for non-medical abuse or neglect. For example, if a nurse or doctor committed a sexual offense against a vulnerable adult or attempted to harm a vulnerable adult such a claim could be asserted under section 415.1111, Florida Statutes. And any person who knew of such abuse and failed to report it to law enforcement could be charged under section 415.111, Florida Statutes. We therefore reverse the appeal and remand with directions to enter a directed verdict for Specialty Hospital on Count II of the 13 verdict. As a matter of law, no cause of action existed under section 415.1111, Florida Statutes, based on the allegations of medical negligence, which encompassed all claims asserted by Mr....

737, 30 So.2d 102 (1947), and concluded that Section 415.111(5) was unconstitutional because it was more

exploitation of an aged person in violation of section 415.111, Florida Statutes (1991). At the same time

PER CURIAM. Robert Lane Ware appeals his convictions for exploitation of an aged person, as proscribed by section 415.111(5), Florida Statutes (1991), and grand theft....

...ad as follows: Category 4: Violent personal crimes: Section 231.06, ^chapters 784 and 836, section 843.01, and subsection 381.411(4). * * * * * * Category 6: Thefts, forgery, fraud: Sections 192.037 and 206.56, chapters 322 and 409, section 370.142, section 415.111, chapter 443, section 493.3175, sections 494.0018, 496.413, and 496.417, chapter 509, subsection 517.301(l)(a), subsections 585.145(3) and 585.85(2), section 687.146, and chapters 812 (except section 812.13), 815, 817, 831, and 832....

...On December 26, 2016 (forty-eight days after his discharge from Village South), the Decedent overdosed and died of acute combined drug toxicity. The Estate filed a three-count complaint against Village South, alleging wrongful death (Count I), violation of section 415.111, Florida Statutes (protecting vulnerable adults), and breach of fiduciary duties....

...5 This appeal followed. 4 Conte further explained: “Corrective action plan is something that we— issue to a provider in order for them to correct something that was found to be not in line with established rules.” 5 The trial court also granted summary judgment on counts II (violation of section 415.1111) and III (breach of fiduciary duty) on the basis that the 7  ANALYSIS As it argued below, the Estate contends on appeal that it is not challenging the “act of discharge” but...

SHAHOOD, Judge. In appellant’s direct appeal of her conviction and sentence, see Taccariello v. State, 664 So.2d 1118 (Fla. 4th DCA 1995), we reversed the convictions for exploitation of the elderly pursuant to section 415.111, Flori *232 da Statutes (1991) 1 , and remanded with directions that the trial court dismiss the charges based on that statute, and resen-tence her on the remaining charges....