Florida/Georgia Personal Injury & Workers Compensation

...UPON CONSIDERATION of the Report and Recommendation, after a de novo review of the record, and being otherwise fully advised in the premises, the Court enters the following Order. I. BACKGROUND Petitioner David Brewster ("Brewster") was convicted under Florida's bank fraud statute, § 655.0322(6), for passing three bad checks....

...abitual offender to seven years imprisonment followed by eight years of probation. A detailed account of the procedural history was included in Judge White's Report and Recommendation (dkt. # 33) and is incorporated herein by reference. II. ANALYSIS Section 655.0322(6), Florida Statutes, states, in relevant part: Any person who knowingly executes, or attempts to execute, a scheme or artifice to defraud a financial institution ......

...or to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution ... by means of false or fraudulent pretenses, representations, or promises, is guilty of a felony of the second degree. *1371 § 655.0322(6), Fla. Stat. Florida's appellate courts have never had occasion to interpret this statute. However, § 655.0322(6), Fla....

...t card fraud, bank mail theft, student loan fraud, and bogus transactions between offshore `shell' banks and domestic banks." Mayor, supra, 31 Am. Crim. L. Rev. at 652-53 (internal citations omitted). As reflected by the language of both § 1344 and § 655.0322(6), Fla....

...Therefore, Brewster's acts do not constitute bank fraud under the federal bank fraud statute. Of course, the interpretation ascribed by federal courts to the federal bank fraud statute is not binding on Florida's state courts. However, 18 U.S.C. § 1344 is substantively identical to § 655.0322(6) with the exception of the financial institutions to which it applies....

...tain its assets by false or fraudulent pretenses. While both portions of the statute have a mens rea requirement, the remainder of the statute is disjunctive, and conduct satisfying the elements of either is sufficient to warrant conviction. Section § 655.0322(6), Fla....

...This finding would be contrary to the apparent intent of Florida's legislature, which has long since enacted a statute dealing specifically with passing bad checks. § 832.05, Fla. Stat. Indeed, § 832.05(4) deals with precisely the conduct at issue here. For a court to find that § 655.0322(6) is merely an alternative statute to criminalize the same acts covered by § 832.05(4), it would have to conclude that the Florida legislature intended the same conduct to constitute either a first degree misdemeanor or third degree felony under § 832.05(4), or a second degree felony under § 655.0322(6), contrary to the plain language of § 655.0322(6) and inconsistent with the manifest intent of Florida's legislature....

...2d DCA 1962))); see also Davis-Dietz v. Sears, Roebuck and Co., No. 6:06-cv-1756-Orl-31DAB (GAP), 2007 WL 3024044 at *1 (M.D.Fla.2007). Therefore, the above-referenced constructions by federal courts concerning the federal bank fraud statute are applicable to § 655.0322(6)....

...Given that Florida adopts the constructions applied to federal laws when it adopts federal laws into the Florida statutes, the preceding analysis concerning the applicability of the federal bank fraud statute to Brewster's conduct may be applied in identical fashion with respect to the applicability of § 655.0322(6) to Brewster's conduct. In sum, passing bad checks does not fall within the scope of § 1441 or § 655.0322(6), absent additional facts evincing a scheme to defraud a financial institution or to obtain its assets by false or fraudulent pretenses and risk of loss to the financial institution....

...Accordingly, the State failed to sufficiently prove that Brewster knowingly executed or attempted to execute a scheme or artifice to defraud a financial institution or to obtain money or assets under false or fraudulent pretenses or representations. Therefore, Brewster's conviction of violating § 655.0322(6) violated his right to due process because the State failed to prove the elements of bank fraud....

...UPON CONSIDERATION of the Report and Recommendation, after a de novo review of the record, and being otherwise fully advised in the premises, the Court enters the following Order. I. BACKGROUND Petitioner David Brewster ("Brewster") was convicted under Florida's bank fraud statute, § 655.0322(6), for passing three bad checks....

...habitual offender to seven years imprisonment followed by eight years of probation. A detailed account of the procedural history was included in Judge White's Report and Recommendation (dkt # 33) and is incorporated herein by reference. II. ANALYSIS Section 655.0322(6), Florida Statutes, states, in relevant part: Any person who knowingly executes, or attempts to execute, a scheme or artifice to defraud a financial institution ......

...or to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution ... by means of false or fraudulent pretenses, representations, or promises, is guilty of a felony of the second degree. § 655.0322(6), Fla. Stat. Florida's appellate courts have never had occasion to interpret this statute. However, § 655.0322(6), Fla....

...dit card fraud, bank mail theft, student loan fraud, and bogus transactions between offshore `shell' banks and domestic banks." Mayor, supra, 31 Am.Crim. L.Rev. at 652-53 (internal citations omitted). As reflected by the language of both § 1344 and § 655.0322(6), Fla....

...Therefore, Brewster's acts do not constitute bank fraud under the federal bank fraud statute. Of course, the interpretation ascribed by federal courts to the federal bank fraud statute is not binding on Florida's state courts. However, 18 U.S.C. § 1344 is substantively identical to § 655.0322(6) with the exception of the financial institutions to which it applies....

...Section 1344(1) concerns a scheme to defraud a financial institution, and § 1344(2) concerns a scheme to obtain its assets by false or fraudulent pretenses. The statute is disjunctive and conduct satisfying the elements of either is sufficient to warrant conviction. Section § 655.0322(6), Fla....

...Number three, David Brewster's course of conduct involved fraudulent pretenses, promises or representations. Number four, SunTrust Bank is a [ ] financial institution. Brewster Trial Tr. at 190, December 27, 2004 (dkt # 26-4). Therefore, Brewster's conduct must have satisfied all elements of both disjunctive portions of § 655.0322(6) because the government assumed the burden of proving more than the statute required....

...This finding would be contrary to the apparent intent of Florida's legislature, which has long since enacted a statute dealing specifically with passing bad checks. § 832.05, Fla. Stat. Indeed, § 832.05(4) deals with precisely the conduct at issue here. For a court to find that § 655.0322(6) is merely an alternative statute to criminalize the same acts covered by § 832.05(4), it would have to conclude that the Florida legislature intended the same conduct to constitute either a first degree misdemeanor or third degree felony under § 832.05(4), or a second degree felony under § 655.0322(6). Such a finding would be contrary to the plain language of § 655.0322(6) and inconsistent with the manifest intent of Florida's legislature....

...(2017). Section 961.03(1)(b)1., Florida Statutes (2017), requires that a petition for compensation be filed within ninety days of the order vacating the conviction. In appellant’s case, 1 The federal opinion explains that he was convicted under section 655.0322(6), Florida Statutes, which was modeled on the federal bank fraud statute, for passing bad checks....

...The racketeering and conspiracy charges were based on nineteen separate instances of grand theft pertaining to mortgage fraud, i.e., involving properties located at nineteen separate addresses. The charges of grand theft and defrauding a financial institution, based on a false statement in violation of section 655.0322(5), Florida Statutes (2005), stemmed from mortgages obtained for nine of the properties....

...Following a jury trial, the lower court granted a judgment of acquittal on the charges of racketeering, conspiracy to *226 commit racketeering, and grand theft. Nine counts of defrauding a financial institution (counts twelve through twenty), based on section 655.0322(5), were left pending....

...included in the earlier complaint. Even more importantly, both count one and the eleven counts of defrauding a financial institution were based on alleged violations of a new statute not involved in the earlier information. These new claims involved section 655.0322(6), Florida Statutes (2005), which states: Any person who knowingly executes, or attempts to execute, a scheme or artifice to defraud a financial institution, subsidiary, or service corporation, or any other entity authorized by law...