Florida/Georgia Personal Injury & Workers Compensation

...included § 812.081 as an enumerated crime for which a civil remedy applied. [72] The current version of *910 § 772.11 — which is applicable to this case — now includes in the list of enumerated crimes "any violation of §§ . 812.012-812.037 or § 825.103(1)" but it does not expressly list § 812.081, as one of the enumerated crimes....

...The claim was asserted pursuant to section 772.11, Florida Statutes (2001). That section provides that any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of sections 812.012 through *380 812.037 or section 825.103(1), Florida Statutes, has a cause of action for three fold the actual damages sustained....

...s claimed and returned the unaccounted-for money to Frederick. Therefore, as a matter of law, the State's evidence was insufficient to sustain a conviction. Count I of the information charged appellant with exploitation of the elderly as provided in section 825.103, Florida Statutes. Subsection (1)(a) essentially has three basic elements and subsection (1)(b) has two. In brief, to prove exploitation under section 825.103(1)(a), the State was required to establish that: (1) the defendant stood in a position of trust and confidence with the victim; (2) the defendant obtained funds belonging to the victim with the intent to temporarily or permanently deprive the victim of those funds; and (3) the defendant used deception or intimidation to obtain the funds. See § 825.103(1)(a)1., Fla. Stat. (2001). [3] To establish exploitation under section 825.103(1)(b), the State was required to prove that: (1) the defendant obtained funds belonging to the victim with the intent to temporarily or permanently deprive the victim of those funds and (2) the defendant knew that the victim lacked the capacity to consent to this taking....

...s charged involved one act of taking the same property. Accord Rich v. State, 823 So.2d 208 (Fla. 2d DCA 2002); Williams v. State, *743 823 So.2d 145 (Fla. 5th DCA 2002). In Rich, the Second District wrote: We have reviewed the exploitation statute, section 825.103, Florida Statutes (1999), and the staff analysis of the bill which enacted the statute....

...Frederick of her money. Thus, the acquittal was a former determination that there was insufficient evidence to prove the intent to deprive, *744 an essential element of both grand theft and exploitation of the elderly. § 812.014, Fla. Stat. (1997); § 825.103(1)(b) (1997)....

...Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee. HAZOURI, J. Cornet McNarrin was charged with two counts of exploitation of an elderly person or disabled adult in violation of sections 825.103(1) and (2), Florida Statutes (2002)....

...Debrovner made out to "cash" in the amount of $6,000. The bank accepted the check and McNarrin received the cash. The State alleged that McNarrin exploited Mrs. Debrovner with the intent to deprive her of the funds received on that date in violation of section 825.103. McNarrin's defense at trial was that she cashed the $6,000 at Mrs. Debrovner's request because Mrs. Debrovner wanted to open an account with the assisted living facility where she was residing. Section 825.103 defines "exploitation of an elderly person" as follows: (a) Knowingly, by deception or intimidation, obtaining or using, or endeavoring to obtain or use, an elderly person's or disabled adult's funds, assets, or property with the inte...

...Currency, of the value of twenty thousand dollars ($20,000.00) or more but less than one hundred thousand dollars ($100,000.00), with the intent to temporarily or permanently deprive [the victim], of the use, benefit, or possession of her property, for the to [sic] benefit of someone other than [the victim], contrary to F.S. 825.103(1) and F.S. 825.103(2)(B)(L7)....

...State, 934 So.2d 1248, 1255 (Fla.2006). Here that risk was not avoided. In determining relevance, we look to the elements of the crime charged and whether the evidence tends to prove or disprove a material fact. The exploitation statute provides for two theories of prosecution. See § 825.103(1)(a)1 & 2, Fla....

...[2] Any person "who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent," is criminally liable for obtaining or using the victim's property with the intent to temporarily or permanently deprive the victim of its use, benefit, or possession. § 825.103(1)(b)....

...Alternatively, an individual who either stands in a position of trust and confidence with the victim or has a business relationship with the victim is guilty of exploitation when she "[k]nowingly, by deception or intimidation" obtains or uses the victim's property. § 825.103(1)(a)....

...Glaid, Assistant Attorney General, Fort Lauderdale, for appellee. KLEIN, J. After pleading no contest, appellant was convicted of third degree grand theft, defined in section 812.014(2)(c), Florida Statutes (1997) and exploitation of an elderly person, defined in section 825.103(1)(a) and (b), Florida Statutes (1997)....

...The State argues that application of the Blockburger test is not warranted in this case because the legislature clearly intended separate punishments for the crimes of grand theft and exploitation of the elderly. We have reviewed the exploitation statute, section 825.103, Florida Statutes (1999), and the staff analysis of the bill which enacted the statute....

...DENTIAL PROPERTY! — 790.15 ; : CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1 *771 Comment This instruction was adopted in 1981 and was amended in 1989 and 2013. 14.9 EXPLOITATION OF [AN ELDERLY PERSON] [A DISABLED ADULT] § 825.103, Fla. Stat. To prove the crime of Exploitation of [an Elderly Person] [Disabled Adult], the State must prove the following four elements beyond a reasonable doubt: Give as applicable. Fla. Stat. § 825.103 (l)(a)....

...temporarily or permanently deprive (victim) of the use, benefit, or possession of [his][her] [funds] [assets] [property]; b. benefit someone other than (victim). 4. At the time, (defendant) knew or reasonably should have known that (victim) lacked the capacity to consent. Fla. Stat. § 825.103 (l)(c)....

...may be aggregated in determining the degree of the offense. Lesser Included Offense EXPLOITATION OF IAN ELDERLY: PERSON! = f A -DISABLED- AD ULT:1: rr — • :825:103:? CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Petit theft - second degree, if 6 825.103(1 Ya~> or(b3is charged 812.014(3 Yal 14.1 Grand Theft, if § 825.103(1 Yal or (b~) is charged 812.014(2Yal1. 14.1 Grand Theft, if S 825.103(1 Yal or (bl is charged 812.014(2Yb'll. 14.1 Grand Theft, if § 825.103(1 Yal or (hi is charged 812.014(2Ycl 14.1 Petit Theft, if S 825.103(1 Ya! or (V) is charged 812.014(2Yel 14.1 *775 Comment This instruction was adopted in 2013....

...d have been expected to result in, serious physical or psychological injury, or a substantial risk of death, to [an elderly person] [a disabled adult]. If “exploitation” is charged within element Sb, insert the elements from Instruction U.9. See § 825.103, Fla....

...ees and costs and treble damages where a person establishes by clear and convincing evidence he has been injured by a violation of Florida's omnibus theft, robbery, and related crimes statutes found at Fla. Stat. Sections 812.012 through 812.037, or Section 825.103(1) of Chapter 812 of the Florida Statutes....

...Glenn, Bradenton, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee. PER CURIAM. Sue Ellison appeals a judgment for exploitation of an elderly person or disabled adult pursuant to section 825.103(1)(a) and (2)(b), Florida Statutes (2005)....

...She made questionable ATM withdrawals and purchase transactions amounting to a total of $3216.71 using Mr. Kadlik's debit card. She caused Mr. Kadlik to transfer his ownership interest in the mobile home park property to joint tenancy with herself. Based on these facts, the State charged Ms. Ellison with violating Section 825.103(1)(a) and (2)(b). [1] Section 825.103(1)(a) defines exploitation of an elderly person as follows: (a) Knowingly, by deception or intimidation, obtaining or using, or endeavoring to obtain or use, an elderly person's or disabled adult's funds, assets, or property with the...

...felony of the second degree. [2] The State alleged that Mr. Kadlik "appears to be suffering from the infirmities of aging and does not appear capable of making proper financial decisions." However, the State did not charge Ms. Ellison with violating section 825.103(1)(b), wherein a person obtains an elderly person's assets when the elderly person lacks capacity to consent.

...Section 825.102(1) makes it a third degree felony to “abuse” a disabled or elderly person; section 825.102(3) criminalizes “neglect” of an elderly or disabled adult; section 825.1025 is aimed at lewd and lascivious offenses committed in the presence of a disabled or elderly person; and section 825.103 is directed at “exploitation.” Each statute specifically defines the conduct criminalized, and no provision refers to, or incorporates, definitions contained within another....

...Obtaining or using property, including money, of the victim with the intent to temporarily or permanently deprive the victim of that property is an essential element of both theft, *318 see § 812.014(1), Fla. Stat. (2011), and exploitation of an elderly person, see § 825.103(l)(a), Fla....

...int for civil theft, it was reasonable for them to believe that Countrywide should not have acted without a writ of possession. Section 772.11 provides that, in a suit for civil theft pursuant to sections 812.012-812.037, Florida Statutes (2002), or section 825.103(1), Florida Statutes (2002), “[t]he defendant is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support.” § 772.11(1), Fla....

...[962 So. 2d 310], 2008 [986 So. 2d 563], and 2013 [109 So. 3d 721], and 2015. - 21 -  14.9 EXPLOITATION OF [AN ELDERLY PERSON] [A DISABLED ADULT] § 825.103, Fla. Stat. To prove the crime of Exploitation of [an Elderly Person] [Disabled Adult], the State must prove the following [three] [four] elements beyond a reasonable doubt: Give as applicable. Fla. Stat. § 825.103(1)(a), Fla....

...ets] [property]; b. benefit someone other than (victim). 4. At the time, (defendant) [stood in a position of trust and confidence] [had a business relationship] with (victim). Fla. Stat. § 825.103(1)(b), Fla....

...benefit, or possession of [his] [her] [funds] [assets] [property]; b. benefit someone other than (victim). 4. At the time, (defendant) knew or reasonably should have known that (victim) lacked the capacity to consent. Fla. Stat. § 825.103(1)(c), Fla....

...(Defendant) was (victim’s) [guardian] [trustee] [agent under a power of attorney]. 3. (Defendant) breached a fiduciary duty to (victim). 4. As a result, there was an unauthorized [appropriation] [sale] [transfer] of (victim’s) property. If § 825.103(1)(c), Fla....

...commits fraud in obtaining [his] [her] appointment; or ii. abuses [his] [her] powers; or iii. [wastes] [embezzles] [intentionally mismanages] the assets of the [ward] [beneficiary of the trust]. § 825.103(1)(d), Fla....

...such account] [convenience account]. 3. (Victim) placed the funds, owned the funds, and was the sole [contributor] [payee] of the funds before the [misappropriation] [misuse] [unauthorized transfer]. § 825.103(1)(e), Fla....

...Give if applicable. Note: The statutory inference does not apply to persons in the business of making loans or to bona fide charitable donations to nonprofit organizations that qualify for tax exempt status under the Internal Revenue Code. § 825.103(2)(b), Fla....

...All rights, interests, and claims in, to, and in respect of, such deposits and convenience account and the additions thereto shall be those of the principal only. Lesser Included Offense EXPLOITATION OF [AN ELDERLY PERSON] [A DISABLED ADULT] — 825.103 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Petit theft – second 812.014(3)(a) 14.1 degree, if § 825.103(1)(a) or (b) is charged Grand Theft, if 812.014(2)(a)1. 14.1 § 825.103(1)(a) or (b) is charged Grand Theft, if 812.014(2)(b)1. 14.1 § 825.103(1)(a) or (b) is charged Grand Theft, if 812.014(2)(c) 14.1 § 825.103(1)(a) or (b) is charged Petit Theft, if 812.014(2)(e) 14.1 § 825.103(1)(a) or (b) is charged Comment This instruction was adopted in 2013 [131 So....

...of innocence. State v. Law, 559 So.2d 187 (Fla.1989). In Everett v. State, 831 So.2d 738 (Fla. 4th DCA 2002), the defendant was convicted of exploiting an elderly person, a crime which contains, in addition to other elements, the elements of theft. § 825.103(l)(a), Florida Statutes....

...Thus, Ms. Montero’s mental capacity and the defendant’s knowledge of Ms. Montero’s mental capacity were disputed issues at trial. 3  The Defective Jury Instruction Section 825.103, Florida Statutes (2008), titled “Exploitation of an elderly person or disabled adult, penalties,” provides as follows: (1) “Exploitation of an elderly person or disabled adult” means: (a) Knowingl...

...an elderly person or disabled adult is valued at less than $20,000, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (emphasis added). Thus, in 2008, the State could prove a section 825.103 exploitation of an elderly person or disabled adult violation by either establishing that: (1) the defendant, who was in a position of confidence and trust, knowingly deceived or intimidated the victim; or (2) the defendant knew or...

...ble doubt that the defendant knew or should have known that Ms. Montero lacked the capacity to consent. Instead, the jury instruction, was as follows: EXPLOITATION OF AN ELDERLY PERSON OR A DISABLED ADULT 1 Section 825.103 has since been amended. In 2009, the statute was amended to add a third way to prove the offense, not applicable here. In 2014, the statute was amended to eliminate the element of “knowingly, by deception or intimidation” under section 825.103(1)(a), and in 2015, the Florida Supreme Court amended the jury instructions to reflect this change. 5  To prove the crime of Exploitation of an Elderly Person or Disabled Adult, the State must prove the following four elements beyond a reasonable doubt: 1....

...capacity to make or communicate reasonable decisions concerning the elderly person’s disabled adult’s person or property. This instruction, unfortunately, was defective under both theories of prosecution under the statute—the State’s theory under section 825.103(1)(b) (that the defendant obtained the property when he knew or should have known Ms. Montero lacked the capacity to consent), or the uncharged theory not relied on by the State under section 825.103(1)(a) (that the defendant stood in a position of trust with Ms. Montero or based on his business relationship with Ms. Montero, knowingly, by deception or intimidation, obtained Ms. Montero’s property). Specifically, under section 825.103(1)(b), the instruction omitted the element that the defendant knew or should have known Ms. Montero lacked the capacity to consent, and under section 825.103(1)(a), the instruction omitted the element that the defendant knowingly by deception or intimidation obtained Ms....

...all of the funds Appellant removed from the victim’s accounts were used for the victim’s benefit. The court denied Appellant’s motion and this appeal follows. Analysis Appellant was convicted of exploitation of an elderly person under section 825.103(1)(b) of the Florida Statutes....

...he funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent[.] § 825.103(1)(b), Fla....

...involved in the exploitation is valued at $10,000 or more but less than $50,000, the offender commits a felony of the second degree. If the funds, assets, or property is valued at less than $10,000, the offender commits a felony of the third degree. § 825.103(3), Fla. Stat. Based on the foregoing, in order to sustain Appellant’s conviction under section 825.103(1)(b), the State was required to prove that: 1) Appellant obtained the victim’s funds or assets; 2) with the intent of depriving the victim of the use or benefit of those funds or assets; and 3) while knowing that the victim lacked the capacity to consent....

...As outlined above, the degree of an exploitation of the elderly conviction depends on the value of the “funds, assets, or property involved in the exploitation” and, therefore, value constitutes an element of the crime that the State must prove beyond a reasonable doubt. § 825.103(3), Fla....

...Accordingly, the State did not prove the value element of the charged crime. We therefore reverse and remand Appellant’s conviction and sentence with instructions that the court re- adjudicate and resentence Appellant for the offense of exploitation of an elderly person in the amount of less than $10,000. § 825.103(3), Fla....

...State, 852 So.2d 226 (Fla.2003) (explaining fundamental error when evi *149 dence failed to show crime was committed). We review the convictions in this light. The fourth amended information charged Guarscio with exploitation of an elderly person in violation of section 825.103(1)(a) and (2)(a), Florida Statutes (2002)....

...f the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who: 1.Stands in a position of trust and confidence with the elderly person or disabled adult.... § 825.103(l)(a) (emphasis supplied)....

...reasonably could have been expected to result in, serious physical or psychological injury, or a substantial risk of death, to [an elderly person] [a disabled adult]. If “exploitation” is charged within element 3b, insert the elements from Instruction 14.9. See § 825.103, Fla....

...Franke told her boss, who informed her that she could not be trustee, but could remain a beneficiary. Teris then amended the trust to make her accountant a co-trustee, along with herself. In 2010, Franke was arrested and charged with exploitation of the elderly, under section 825.103, Florida Statutes (2009)....

...A trial court should grant a motion for judgment of acquittal “in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Id. The State’s case was based on two theories under section 825.103, Florida Statutes....

...endeavored to obtain] funds belonging to the victim with the intent to 2 temporarily or permanently deprive the victim of those funds; and (3) the defendant used deception or intimidation to obtain the funds.” Everett, 831 So. 2d at 741; see also § 825.103(1)(a), Fla....

...The second theory required the State to prove that Franke obtained or endeavored to obtain funds belonging to Teris with the intent to temporarily or permanently deprive Teris of those funds, and that Franke knew or should have known that Teris lacked the capacity to consent. § 825.103(1)(b); Everett, 831 So....

...Even then, Franke would receive something only if anything remained in the trust. Although we need not decide the issue in this case, it does not seem that obtaining the future expectancy of property under a will or trust falls under the purview of the statute. Prior reported cases which we have found addressing section 825.103 have concerned a present transfer of property, not a future expectancy in a will or trust....

ALTENBERND, Chief Judge. David Lindsay Bernau appeals a judgment for exploitation of an elderly person through deception or intimidation pursuant to section 825.103(l)(a), Florida Statutes (1999)....

...2 Nevertheless, the, trial court denied David Bernau’s motion for judgment of acquittal and the jury rendered a verdict that David Bernau was guilty as charged. Because the trial court erred in denying the motion for judgment of acquittal, we reverse. Section 825.103(1), Florida Statutes (1999), sets forth two separate ways in which the crime of exploitation of the elderly may be committed: (1) “Exploitation of an elderly person or disabled adult” means: (a) Knowingly, by deception or intimida...

...someone other than the elderly person or disabled adult, by a person who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent. Here, the information specifically charged David Bernau with violating section 825.103(l)(a) and specifically tracked the language regarding the u§e of deception or intimidation. The State did not seek to prove the crime 'set forth in section 825.103(l)(b), wherein a person obtains an elderly person’s assets at a time when they know or reasonably should know that the elderly person lacks the capacity to consent....

...To maintain a cause of action under the civil theft statute a plaintiff must show, by “clear and convincing evidence,” an injury caused by the defendant’s violation of one or more of the provisions of the criminal theft laws found in sections 9 812.012-037 or section 825.103(1), Florida Statutes....

...Franke told her boss, who informed her that she could not be trustee, but could remain a beneficiary. Teris then amended the trust to make her accountant a co-trustee, along with herself. In 2010, Franke was arrested and charged with exploitation of the elderly, under section 825.103, Florida Statutes (2009)....

...A trial court should grant a motion for judgment of acquittal “in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Id. The State’s case was based on two theories under section 825.103, Florida Statutes....

...or endeavored to obtain] funds belonging to the victim with the intent to temporarily or permanently deprive the victim of those funds; and (3) the defendant used deception or intimidation to obtain the funds.” Everett, 831 So. 2d at 741; see also § 825.103(1)(a)....

...The second theory required the State to prove that Franke obtained or endeavored to obtain funds belonging to Teris with the intent to temporarily or permanently deprive Teris of those funds, and that Franke knew or should have known that 2 Teris lacked the capacity to consent. § 825.103(1)(b); Everett, 831 So....

...Even then, Franke would receive something only if anything remained in the trust. Although we need not decide the issue in this case, it does not seem that obtaining the future expectancy of property under a will or trust falls under the purview of the statute. Prior reported cases which we have found addressing section 825.103 have concerned a present transfer of property, not a future expectancy in a will or trust....