Florida/Georgia Personal Injury & Workers Compensation

...with intent to injure or defraud any person, commits a felony of the third degree." § 831.21 (emphasis added). The statute dealing with counterfeiting a payment instrument defines "counterfeit" to mean the manufacture without permission or the manufacture "with a fictitious name, routing number, or account number." § 831.28(1). It is a third-degree felony "to counterfeit a payment instrument with the intent to defraud." § 831.28(2)(a). The ordinary definition of "simulate" is "to give or assume the appearance or effect of often with the intent to deceive." Simulate, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/simulate (last visited Dec....

GRIFFIN, J. The State of Florida appeals an order in which the trial court declared unconstitutional the portion of section 831.28(2)(a), Florida Statutes (2012), that makes it a crime to possess a counterfeit payment instrument....

...them, blank check stock, a printer and Florida identification that did not belong to Thomas.” Subsequently, Thomas was charged with eight counts of counterfeiting a payment instrument and possessing a counterfeit payment instrument in violation of section 831.28(2)(a)....

...Thomas filed a motion to dismiss the information in accordance with Florida Rule of Criminal Procedure 3.190. In his motion, Thomas argued that the statute is facially unconstitutional because it creates strict liability for possessing a counterfeit payment instrument. Section 831.28(2)(a) provides: It is unlawful to counterfeit a payment instrument with the intent to defraud a financial institution, account holder, or any other person or organization or for a person to have any counterfeit payment instrument in such person’s possession....

...d portion of subsection (2)(a) is unconstitutional. For example, interpreted as written, if an independent contractor took a payment instrument as payment for work he provided without knowing such payment instrument was counterfeit, he would violate section 831.28(2)(a). Also, the innocent — even beneficial — use of a “counterfeit” check for demonstrative, educational or ceremonial purposes would be criminalized. Thomas is correct that the portion of section 831.28(2)(a) criminalizing the mere possession of a counterfeit payment instrument is facially unconstitutional....

...t evil acts,” 2 this is not such a case. Simply by drafting the statute to include an intent to defraud, the Legislature can accomplish its purpose without infringing on innocent or protected conduct. The trial court correctly found the portion of section 831.28(2)(a) criminalizing the mere possession of a counterfeit payment instrument to be unconstitutional....

...Purdy, Public Defender, and Nicole Joanne Martingano, Assistant Public Defender, Daytona Beach, for Appellee. EVANDER, J. The State appeals an order vacating Chanel Nicole Mendez’ conviction for counterfeiting a payment instrument or possessing a counterfeit payment instrument in violation of section 831.28(2)(a), Florida Statutes (2014).1 In granting Mendez’ motion to 1 Section 831.28(2)(a), Florida Statutes, provides: vacate her conviction, the trial court cited our decision in State v. Thomas, 133 So. 3d 1133 (Fla. 5th DCA 2014), where we held that the portion of section 831.28(2)(a) criminalizing mere possession of a counterfeit payment instrument was facially unconstitutional....

...The second count of the information read, in relevant part: CHANEL NICOLE MENDEZ, between the 30th day of November, 2014 and the 24th day of December, 2014, in said County and State, did, in violation of Florida Statute 831.28(2)(a), counterfeit a payment instrument or possess a counterfeit instrument, to-wit: A CHECK, specifically: A CHECK number 13652, dated 12-12-2014, in the amount of $376.41, with intent to defraud [nam...