Arrestable Offenses / Crimes under Fla. Stat. 838.016
CopyCited 145 times | Published | Court of Appeals for the Eleventh Circuit | 1996 WL 390423
...uptly
utilized the Circuit Court of Dade County for profit. In
convicting Massey, the jury specifically found that Massey
committed two predicate acts of bribery in violation of section
838.016(1) of Florida Statutes: racketeering act 2 involving the
payment of Sepe's bills at Buccione and racketeering act 5
involving the assignment of Sepe's Christmas lunch bills to
Massey's account at the Club....
...of Dade County—a legitimate
enterprise—through a pattern of racketeering activity. A "
"pattern of racketeering activity' requires at least two acts of
racketeering activity." 18 U.S.C. § 1961(5). Section 838.016(1)
only required the jury, in finding that Massey committed act 5, to
conclude that Massey agreed to pay for Sepe's Christmas parties in
exchange for court appointments, not that Massey actually paid
these bills. Section 838.016(1) provides:
It is unlawful for any person corruptly to give, offer, or
promise to any public servant, ......
...omission which the person believes to have been, or the public
servant represents as having been, either within the official
discretion of the public servant, in violation of a public
duty, or in performance of a public duty.
Fla.Stat.Ann. § 838.016(1) (West 1994)....
CopyCited 48 times | Published | Court of Appeals for the Eleventh Circuit | 1987 U.S. App. LEXIS 11208
...alleged extortion. Inasmuch as there is insufficient evidence to support the Hobbs Act conviction, the Travel Act charge fails as well. The Travel Act charge relied on Florida’s unlawful compensation statute as the predicate act. That statute, FSA § 838.016, has been interpreted as being substantially identical to Hobbs Act extortion “under color of official right.” Shields v....
CopyCited 23 times | Published | Florida 2nd District Court of Appeal
...We assume that at the retrial of this case the misunderstanding concerning "public employees" will not recur. Further, we see no reason to submit to the jury the question whether the statement was defamatory. It flatly accused appellant, a public servant, of taking bribes, which is a crime. § 838.016, Fla....
CopyCited 22 times | Published | Court of Appeals for the Eleventh Circuit | 1988 U.S. App. LEXIS 2083, 1988 WL 6559
...ary to achieve the person's purpose. 133 (3) Any person who commits bribery is guilty of a felony in the third degree, punishable as provided in Sec.
775.082, Sec.
775.083, or Sec.
775.084. 134 [3.] At all times material herein, Florida Statute Sec.
838.016 provided: 135 (1) It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or other benefit not authorized by l...
CopyCited 18 times | Published | Supreme Court of Florida | 2005 WL 2095664
...appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he][she] actually assumes office. 19.3 BRIBERY UNLAWFUL COMPENSATION OR REWARD OF PUBLIC SERVANT § 838.016(1), Fla....
...nsating or paying for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his][her] public duties. The court now instructs you that a (office of person bribed) is a public servant. § 838.016(3), Fla....
...For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he][she] actually assumes office. § 838.016(1), Fla....
...There is no prohibition against a public servant accepting a reward for services performed in apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate instruction should be given. 19.4 BRIBERY UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT § 838.016(1), Fla....
...for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his][her] the public servant's public duties. The court now instructs you that a (office of defendant) is a public servant. § 838.016(3), Fla....
...For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he][she] actually assumes office. § 838.016(1), Fla....
...There is no prohibition against a public servant accepting a reward for services performed in apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate instruction should be given. 19.5 BRIBERY UNLAWFUL COMPENSATION OR REWARD OF PUBLIC SERVANT § 838.016(2), Fla....
...public servant that is inconsistent with the proper performance of [his][her] public duties. The court now instructs you that a (office of person bribed) is a public servant and that a (office of person sought to be influenced) is a public servant. § 838.016(3), Fla....
...appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he][she] actually assumes office. 19.6 BRIBERY UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT § 838.016(2), Fla....
...public servant that is inconsistent with the proper performance of [his][her] public duties. The court now instructs you that a (office of person bribed) is a public servant and that a (office of person sought to be influenced) is a public servant. § 838.016(3), Fla....
CopyCited 16 times | Published | Florida 4th District Court of Appeal | 1995 WL 132159
...Plaintiff attempted to predicate his defamation claim on the contention that defendant's three letters effectually charged plaintiff with the unlawful acceptance of compensation from a third party for the performance of his public duties. In fact, plaintiff persuaded the trial judge to read section 838.016, Florida Statutes (1991), to the jury and later to instruct them based on the statute....
...ures in Curtis Publishing Co. v. Butts,
388 U.S. 130,
87 S.Ct. 1975,
18 L.Ed.2d 1094 (1967). [3] Because the plaintiff in this case is a public official, he already had the burden of proving falsity, so the Hepps holding has not been implicated. [4] Section
838.016, Florida Statutes (1993), states in pertinent part as follows: "(1) It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to...
CopyCited 13 times | Published | Florida 2nd District Court of Appeal | 10 Media L. Rep. (BNA) 1034
...cial obligations, with intent or purpose to influence the sentencing of Alisa Avery which Judge Leon believed to be, or was within the official discretion of Judge Merckle in the performance of a public duty. Count 5 charged that Judge Leon violated section 838.016(2), Florida Statutes, by accepting gambling chips representing a monetary value, and/or buying a motor vehicle at a price less than actual value, and/or being relieved of financial obligations for past, present, or future exertion of...
CopyCited 12 times | Published | Court of Appeals for the Eleventh Circuit | 1991 U.S. App. LEXIS 21309, 1991 WL 163622
...he district court did not err in its refusal to give the proposed defense jury instruction. B. Florida Unauthorized Compensation Statute Appellants Williams and Tanner argue that violations of the Florida Unauthorized Compensation Statute, Fla.Stat. § 838.016 (1979), are not predicate acts under the RICO definition of acts involving bribery....
CopyCited 12 times | Published | Florida 3rd District Court of Appeal
...did unlawfully agree, combine, conspire or confederate with each other and with other persons to commit one or more felonies, to wit: BRIBERY, in violation of Section
838.015, Florida Statutes, or UNLAWFUL COMPENSATION FOR OFFICIAL BEHAVIOR, in violation of Section
838.016, Florida Statutes, or both, and in furtherance of said conspiracy ALBERT W....
...Second, it is impossible to determine the unlawful object of the charged conspiracy, namely, whether it was to violate (a) the bribery statute [Fla. Stat. §
838.015 (1977)], or (b) the unlawful compensation for official behavior statute [Fla. Stat. §
838.016 (1977)], or (c) both of those statutes....
CopyCited 10 times | Published | Florida 1st District Court of Appeal
...Dion, Entin, Schwartz, Angert, Dion & Broudy, North Miami Beach, Clyde M. Taylor, Jr., Tallahassee, for appellant. Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee. WENTWORTH, Judge. Appellant seeks review of a judgment of conviction and sentence imposed for the offense of unlawful compensation, § 838.016, Florida Statutes....
CopyCited 9 times | Published | Supreme Court of Florida
...[2] In addition to the literal definition of the phrase, it is also important to note that "offer" is a term commonly employed in our criminal statutes. Among these, it is a criminal offense to "offer to commit" prostitution, section
796.07(3)(a); to "offer" a bribe, section
838.016; to "offer" to sell obscene materials, section 847.014(2)(b)(2); to "offer" to sell fireworks, section
791.02; to "offer" to sell lottery tickets, section
849.09(g)....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 203
...Gen., for appellee. Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ. HENDRY, Judge. By this appeal, Daniel Bricker challenges his conviction of bribery [§
838.015, Fla. Stat. (1981)] and receiving unauthorized compensation for official behavior [§
838.016(1), Fla....
CopyCited 8 times | Published | Florida 1st District Court of Appeal
...felony specified in chapter 838." The trial court rightly held that the "acts charged and for which the defendant was found guilty" constituted requesting or soliciting unlawful compensation for official behavior, a third degree felony proscribed by Section 838.016(1), Fla....
...Acts for which Shields was Convicted Focusing now on the acts for which Shields was convicted, as described in the charging instrument, we find that those acts constitute and would support a Florida conviction of a Chapter 838 felony, namely, requesting or soliciting unlawful compensation for official behavior. Section 838.016(1)....
...e offense proscribed by Florida's unlawful compensation statute. First, Shields' "color of official right," required by the federal statute, was his office as executive director of DNR, which assuredly is a public office addressed by Florida Statute 838.016(1)....
CopyCited 6 times | Published | Supreme Court of Florida | 13 Fla. L. Weekly 381
...Accordingly, I would answer the certified question in the negative and quash the decision of the Second District Court of Appeal. BARKETT, J., concurs. NOTES [1] The jury convicted Merckle of four offenses: bribery, §
838.015(1), Fla. Stat. (1981); receiving unlawful compensation, §
838.016(2), Fla....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal
...As such error was properly preserved for appellate review herein, we reverse. The facts pertaining to the above issue are undisputed. The defendant George C. Watkins was charged by information in two counts with: (1) bribery [§
838.015, Fla. Stat. (1977)], and (2) receiving unlawful compensation [§
838.016, Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 12 Fla. L. Weekly 1245
...Gen., Tallahassee, and Gary O. Welch, Asst. Atty. Gen., Tampa, for appellee. PER CURIAM. The grand jury indicted the defendant, Arden M. Merckle, for bribery in violation of section
838.015(1), Florida Statutes (1981), receiving unlawful compensation in violation of section
838.016(2), Florida Statutes (1981), extortion by a state officer in violation of section
839.11, Florida Statutes *949 (1981), and misbehavior in office in violation of section
775.01, Florida Statutes (1981)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...constable, city marshal or policeman from accepting rewards or remuneration for services performed in apprehending any criminal." Amended in 1974 (Ch. 74-383, Laws of Florida) specifically modifying the proscribed acts with the word "corruptly". Now Section 838.016, Florida Statutes (1975)....
CopyCited 5 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 877, 2013 WL 6305393, 2013 Fla. LEXIS 2640
...thing of economic value not authorized by law. § 838.01MU), Fla. Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose. The court now instructs you that (offSee-of-pei-son-bribed) is a public serv- Give if applicable. § 838.016(3), Fla....
...For the purpose-of-the laws against bribery, any person who has-been elected-or-appointedto, or who is a candidate for election or appointment-to, any- public-office- is regarded as already-being in that-office with respect to-any-transaction relating to an-act-to-be-done if and when-[-he][-shej-actually assumes office, §
838.016(iX-FlckStat- Th&re-is-no-prohAbition-against a public servant aeeepting — a—reward-for-: services performed- in ■apprehending a criminal. Therefore, if the evidence presmts-a-faetual issue on this point, — an—appropriate mshmetionshouldbe-given. Lesser Included Offenses 19.3 UNLAWFUL COMPENSATION OR REWARD OPTO PUBLIC SERVANT FOR OFFICIAL BEHAVIOR — 838.016(1) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt if only
777.04(1) 5.1 “giave” is charged Comments §
838.016(1), Fla....
...Therefore, if the evidence presents a factual issue on this point, a special instruction must be given. This instruction was adopted in 1981 and amended in 2005 [
911 So.2d 766 ] and 2013. 19.4 UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT FOR OFFICIAL BEHAVIOR §
838.016(1), Fla....
...g of economic value not authorized by law. *737 § 828.01MU), Fla. Stat “Corruptly” means acting knowingly and dishonestly for a wrongful purpose. The court now instructs you that a (office of person bribed) is a public serv- Give if applicable. § 838.016(3), Fla....
...pprehending — a ■ criminal. T-her-efore-,-ifthe evidence presents a factual iss%ie on this -pointr-an.appropriate instruction should-be-given-.- Lesser Included Offenses No lesser included offenses have been identified for this offense. Comments § 838.016(1), Fla....
...thing of economic value not authorized by law. § 838.0U(U), Fla. Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose. The court now instructs you-that a (office-of-person bribed) is a public serv- Give if applicable. § 838.016(3), Fla....
...to an act to be done if and when-[-he-][she] actually assumes office. Lesser Included Offenses ■No-lesser included-offenses have been identifled-for this offense. *739 19.5 UNLAWFUL COMPENSATION OR REWARD OFTO PUBLIC SERVANT FOR OFFICIAL BEHAVIOR
838.016(2) CATEGORY ONE CATEGORY TWO FLA. INS. NO. STAT. None Attempt if only
777.04(1) 5.1 “gave” is charged Comments §
838.016(1), Fla....
...Therefore, if the evidence presents a factual issue on this point, an appropriate instruction should be given. This instruction was adopted in 1981 and amended in September 2005 [
911 So.2d 766 ] and 2013. 19.6 UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT FOR OFFICIAL BEHAVIOR §
838.016(2), Fla....
...ing of economic value not authorized by law. §
838.014(64), Fla. Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose. The court now instructs you that.a (office-of-person bribed) is-a public serv- Give if applicable. §
838.016(3), Fla....
...ser Included Offenses BRIBERY BY PUBLIC SERVANT — 83&»16(2) CATEGORY-ONE CATEGORY-TWO FLA, STAT, INS. NO. ■None Attempt-i-f-onl-y
777.04(1) 54-“give” is charged No lesser included offenses have been identified for this offense. Comments §
838.016(1), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2008 Fla. App. LEXIS 12687, 2008 WL 3914892
...At the formal hearing, the Board found that Simcox had committed a "specified offense" forfeiting his retirement benefits under section
112.3173(2)(e)(4) because the acts underlying the federal crime of which Simcox was convicted would support a Florida conviction for a Chapter 838 felony under both section
838.016, unlawful compensation for official behavior, and section
838.022, official misconduct....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1989 WL 2021
...Gen., and Janet Reno, State Atty., and Anthony C. Musto, Asst. State Atty., for appellee. Before HUBBART and FERGUSON, JJ., and JAMES C. DOWNEY, Associate Judge. JAMES C. DOWNEY, Associate Judge. Appellant, Franklin Lee McFadden, was charged with violating section 838.016(2), Florida Statutes (1981), which prohibits the receipt of unlawful compensation by a public official....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 12 Fla. L. Weekly 1244
...Welch, Asst. Attys. Gen., Tampa, for appellee. PER CURIAM. Defendant Howard L. Garrett was convicted after a jury trial of the offenses of bribery, a violation of section
838.015(1), Florida Statutes (1981), and receiving unlawful compensation, a violation of section
838.016(2), Florida Statutes (1981)....
...egarding any act or omission which the person believes to have been, or which is represented to him as having been, either within the official discretion of the other public servant, in violation of a public duty, or in performance of a public duty. Section 838.016(2), Florida Statutes (1981)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 12 Fla. L. Weekly 1243
...Appellant, Richard P. Hope, appeals his convictions and sentences imposed after a jury convicted him for the offenses of bribery, a violation of section
838.015(1), Florida Statutes (1981), and giving, offering or promising unlawful compensation, a violation of section
838.016(2), Florida Statutes (1981)....
CopyCited 3 times | Published | District Court, S.D. Florida | 1993 U.S. Dist. LEXIS 10487, 1993 WL 289261
...e state law bribery charges as well since the elements of the Hobbs Act are present in the bribery charge. The additional agreement element for bribery is simply irrelevant to the analysis. Moreover, the Eleventh Circuit has already stated that "FSA § 838.016 has been interpreted as being substantially identical to Hobbs Act extortion `under color of official right.'" United States v....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1992 WL 153977
...d County Expressway Authority, JOHN M. GERREN, JR., did exercise his official authority, discretion or influence on behalf of Vito's Trucking & Excavating Company, Inc. during the construction of Section One of the Sawgrass Expressway, contrary to F.S. 838.016(1)....
...Smith,
404 So.2d 1106 (Fla. 1st DCA 1981), rev. denied,
412 So.2d 470 (Fla. 1982), and McCormick v. United States, ___ U.S. ___,
111 S.Ct. 1807,
114 L.Ed.2d 307 (1991). We disagree. In Count I of the information, the state alleged that appellee violated section
838.016, Florida Statutes (1989)....
...cial discretion of the public servant, *517 in violation of a public duty, or in performance of a public duty. Nothing herein shall be construed to preclude a public servant from accepting rewards for services performed in apprehending any criminal. § 838.016(1), Fla....
...eceiving compensation for any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. In State v. Milbrath,
527 So.2d 864, 865 (Fla. 5th DCA 1988), the court interpreted section
838.016(2), Florida Statutes, concerning unlawful compensation for the past, present, or future exertion of any influence upon or with any other public servant, and found that "there must be a showing that the public official acted as prohibi...
...chapter 838. The Shields court affirmed the trial court's finding that the acts charged, for which the defendant was found guilty, constituted "requesting or soliciting unlawful compensation for official behavior, a third degree felony proscribed by section
838.016(1), Fla. Stat. (1979)." Shields,
404 So.2d at 1109. In the instant case, the trial court relied on Shields for the proposition that the elements required to establish a violation of both section
838.016 and the federal Hobbs Act were "virtually identical," requiring that a "quid pro quo be established in exchange for official behavior." Having decided that the elements of the two offenses were identical, the trial court relied on the recent Supreme Court decision in McCormick and determined that an explicit quid pro quo is required under section
838.016....
CopyCited 2 times | Published | Supreme Court of Florida | 2004 WL 856754
...Sepler, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Respondent. CANTERO, J. In this case, we interpret Florida's unlawful compensation statute, which prohibits public officials from seeking or accepting unauthorized benefits in return for performance or nonperformance of official duties. See § 838.016(1), Fla....
...Castillo did not report his over-forty-minute encounter with A.S. Instead, he reported that during that time he was engaged in various other patrol duties. [1] Castillo was charged with, and a jury found him guilty of, unlawful compensation and official misconduct. See § 838.016(1), Fla....
...violation of any act or omission which the person believes to have been, or the public servant represents as having been, either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty. § 838.016(1), Fla....
...licit, or accept any pecuniary or other benefit not authorized by law. Such language implies that, although evidence of an agreement is sufficient to prove a violation the statute also prohibits agreeing to accept a benefit it is not required. Section 838.016(1) further requires that the public servant must request, solicit, accept, or agree to accept the unlawful benefit "corruptly," which means "with a wrongful intent and for the purpose of obtaining or compensating or receiving compensa...
...e mens rea requirement of "with the intent" was meant "to avoid the necessity of proving a `meeting of the minds'" because "subjective wrongful intent of the bribe offeror is the gravamen of bribe giving"). We agree with this reasoning and hold that section 838.016(1) does not require a specific agreement....
...The Court in Grady stated only that if a mutuality of understanding is present along with other facts, the statute is violated. Moreover, Grady analyzed an earlier version of the statute, which prohibited only exacting or accepting remuneration. The current statute, section 838.016(1), prohibits requesting, soliciting, accepting, or agreeing to accept a benefit....
...law, rule or regulation that may be incumbent upon the said officer or appointee to administer, respect, perform, execute or to have executed.... The statute was later codified at section 838.06, Florida Statutes, which was repealed and readopted as section 838.016, Florida Statutes, effective in 1975....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1989 WL 34847
...relief. Accordingly, the order of the trial court is reversed and this case remanded for further proceedings pursuant to rule 3.850. Reversed. SCHEB, A.C.J., and SCHOONOVER and THREADGILL, JJ., concur. NOTES [1] §
838.015(1), Fla. Stat. (1981). [2] §
838.016(2), Fla....
CopyCited 1 times | Published | District Court, M.D. Florida | 1996 U.S. Dist. LEXIS 4693, 1996 WL 172362
...Furthermore, Article 1(a) of the Supplementary Treaty amends Article 2(1) of the Treaty by expanding the definition of extraditable offenses to include offenses which are punishable under State law. The acts charged against the petitioner are punishable under Florida Statute §
838.015 (bribery) and Florida Statute §
838.016 (misuse of public office)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 10 Media L. Rep. (BNA) 2135, 1984 Fla. App. LEXIS 12510
...[2] We find no merit in appellant's contention that the published articles by using the words "bribe" and "bribery" changed the meaning of Nazzaro's words. "On the take" means "taking a bribe." [3] Nazzaro did not recall if Aurilio was under oath when she made the subject statement about Jamason. [4] See section 838.016, Florida Statutes (1983)....
CopyPublished | District Court of Appeal of Florida
collusive purpose. That would be illegal. See, e.g., §
838.016(1), Fla. Stat. (2017) (“It is unlawful for any
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 16578, 40 Fla. L. Weekly Fed. D 2464
...The defendant appeals from his convictions on fourteen counts of
unlawful compensation or reward for official behavior and one count of
conspiracy to commit unlawful compensation or reward for official
behavior. The defendant primarily argues that section 838.016(1), Florida
Statutes (2008), which codifies the crime of unlawful compensation or
reward for official behavior, was unconstitutional as applied to him....
...Thus, we affirm.
This opinion will address only the constitutional issue. We will begin
by detailing the trial court proceedings on that issue. We then will turn to
our analysis of that issue with an examination of other statutory
provisions, case law, and the plain meaning of section 838.016(1) itself.
Trial Court Proceedings
The state’s ultimate information alleged the counts for unlawful
compensation or reward for official behavior as follows, with various terms
substituted as shown:
[The defendant] on or between [certain dates] ....
...performance, nonperformance or violation of any act or
omission within the official discretion of [name] in violation of
a public duty, or in performance of a public duty, as [title of
public servant], contrary to Florida Statute 838.016(1) (2 DEG
FEL).
Section 838.016(1), Florida Statutes (2008), provides, in pertinent part:
It is unlawful for any person corruptly to give, offer, or
promise to any public servant, or, if a public servant,
corruptly to request, solicit, accept, or...
...the public
servant represents as having been, either within the
official discretion of the public servant, in violation of a
public duty, or in performance of a public duty. . . .
The defendant’s motion to dismiss argued that section
838.016 was
unconstitutional as applied to his prosecution in violation of the due
process clauses of the Florida Constitution and the United States
Constitution. Specifically, the defendant argued that an essential element
of section
838.016(1) which the state must prove is that the benefit given
to a public servant is “not authorized by law.” However, as the defendant
noted, the phrase “not authorized by law” is not defined in section
838.016(1), the standard jury instructions, or case law. Thus, the
defendant argued, section
838.016(1) is unconstitutionally vague in two
respects: (1) it gives no notice of what conduct it forbids; and (2) it
encourages arbitrary arrests, prosecutions, and convictions.
The state filed a response to the defendant’s motion. In the response,
the state argued that section
838.016, coupled with sections
112.313(2)
and
112.313(4), Florida Statutes (2008), provided adequate notice of
2
proscribed conduct and provided law enforcement with sufficient guidance
to avoid arbitrary arrests and prosecutions....
...WITNESS: A purchase order.
STATE: And is that for work that’s to be done in the
municipality?
WITNESS: Yes, sir.
At the charge conference, the parties brought to the court’s attention
that the standard jury instruction for section 838.016 referred to the
phrase “not authorized by law,” but did not define that phrase....
...reasonable care, should know, that it was given to influence a
vote or other action in which the officer or employee was
expected to participate in his or her official capacity.
In response, the defendant stated that, without waiving his argument
that section
838.016’s use of the phrase “not authorized by law” was
unconstitutionally vague, he agreed with the state that the court should
instruct the jury on the element of “not authorized by law” pursuant to
section
112.313(4)....
...The jury returned guilty verdicts on all fifteen counts. This appeal
followed.
Appellate Analysis
The defendant primarily argues that the court erred in denying his
motion to dismiss the information on the ground that section
838.016(1)
is unconstitutional as applied to him because of the alleged vagueness of
its phrase “not authorized by law.”
Based on this argument, we must affirm. Our supreme court already
has rejected a vagueness challenge to section
838.016(1). See Hoberman
v. State,
400 So. 2d 758, 758 (Fla. 1981) (“[A]ppellant was convicted of
bribery and unlawful compensation for official behavior pursuant to
sections
838.015(1) and
838.016(1), Florida Statutes (1977). . . .
Appellant’s vagueness challenge fails because sections
838.015(1) and
838.016(1) convey a sufficiently definite warning as to the proscribed
conduct ....
...reference to other statutory provisions, case law, or the plain
and ordinary meaning of a word of common usage.
796 So. 2d at 527-28 (other citations and quotation marks omitted).
Applying our supreme court’s guidance here, we conclude that
although section
838.016(1)’s use of the phrase “not authorized by law” is
not defined in the statute itself, its meaning can be ascertained by
reference to other statutory provisions, case law, and the plain and
ordinary meaning of its words of common usage. We address each below.
1. Other Statutory Provisions
Two statutory provisions may be used to define what constitutes a
benefit “not authorized by law,” as that phrase is used in section
838.016(1).
First, section
112.313(2), Florida Statutes (2008), provides:
No public officer, employee of an agency, local government
attorney, or candidate for nomination or election shall solicit
or accept anything of...
...official action. Any such thing is a benefit “not authorized by law.”
2. Case Law
Two cases are useful in defining the plain meaning of what constitutes
a benefit “not authorized by law,” as that phrase is used in section
838.016(1) – State v....
...The Merriam-Webster Online
Dictionary defines “authorize” as “to give legal or official approval to or for
(something).” See www.merriam-webster.com/dictionary/authorized (last
checked October 12, 2015). Substituting that definition for the phrase
“not authorized by law” within section 838.016(1) results in the following:
It is unlawful for any person corruptly to give, offer, or promise
to any public servant, or, if a public servant, corruptly to
request, solicit, accept, or agree to accept, any pecuniar...
...10
use of the language “not authorized by law,” means not
authorized by state and federal food stamp law.
365 So. 2d at 159.
Applying the supreme court’s reasoning from Rodriquez here, we
conclude that implicit in section
838.016(1) is the fact that the phrase “not
authorized by law” refers to state ethics law, section
112.311 et seq.,
Florida Statutes (2008). Thus, section
838.016(1) was sufficiently definite
to inform the defendant that his conduct in providing gifts to influence
public employees’ official action – which in turn, caused them to violate
sections
112.313(2) and
112.313(4) by accepting things of value given to
influence their official action – was “not authorized by law.”
3. Plain Meaning
In addition to our plain meaning analysis analogous to Brake, we
observe that section
838.016(1)’s use of the phrase “not authorized by law”
is not novel. When the legislature enacted section
838.016(1) in 1974, it
included the phrase “not authorized by law.” See Ch....
CopyPublished | Florida 2nd District Court of Appeal | 9 Fla. L. Weekly 2304, 1984 Fla. App. LEXIS 15706
...AM. We find sufficient evidence in the record to support appellant’s conviction as a public servant of accepting benefits not authorized by law for the past, present or future exertion of influence upon other public servants which is prohibited by section 838.016(2), Florida Statutes (1981)....
CopyPublished | Florida 4th District Court of Appeal | 1977 Fla. App. LEXIS 15701
accepting unauthorized compensation contrary to Section
838.016, Florida Statutes (1975), a third degree felony
CopyPublished | Supreme Court of Florida | 27 Fla. L. Weekly Supp. 264, 2002 Fla. LEXIS 437, 2002 WL 432551
...The court may review any ruling or matter occurring before filing of the notice. Multiple final orders may be reviewed by a single notice, if the notice is timely filed as to each such order. . The statute on "Unlawful compensation or reward for official behavior," section 838.016(1), Florida Statutes (2000), provides in pertinent part: "It is unlawful for any person corruptly to give ......
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 1421, 1988 Fla. App. LEXIS 2537, 1988 WL 61387
SHARP, Chief Judge. The appellee, Milbrath, was charged with violating section 838.016(2), Florida Statutes (1985) (unlawful compensation or reward for official behavior), which makes it a criminal offense for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to re...
...to take official action in Media’s favor. Criminal statutes must be construed strictly. Drury v. Harding,
461 So.2d 104 (Fla.1984); Brown v. State,
458 So.2d 313 (Fla. 5th DCA 1984), review dismissed,
476 So.2d 660 Fla.1985). It appears to us that the evil sought to be punished by section
838.016(2) is an official’s request for, agreement to accept, or acceptance of illegal compensation or benefits from another person, in exchange for taking official action or exerting influence with other public officials in violation of the public interest....
CopyPublished | Florida 4th District Court of Appeal | 2013 Fla. App. LEXIS 11602, 2013 WL 3811759
...candidate[s] selling their vote, and they are not prosecuted for unlawful compensation, bribery, or official misconduct, because they maintain their position and vote accordingly.” The Charges The first count against Talabisco was for unlawful compensation or reward for official behavior, which is defined under section 838.016(1), Florida Statutes (2010): It is unlawful for any person corruptly to give, offer, or promise to any public servant,- or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or other benefit...
...cial discretion of the public servant, in violation of a public duty, or in performance of a *573 public duty. Nothing herein shall be construed to preclude a public servant from accepting rewards for services performed in apprehending any criminal. § 838.016(1), Fla....
...official discretion of the public servant, in violation of a public duty, or in performance of a public duty. Nothing herein shall be construed to preclude a public servant from accepting rewards for services performed in apprehending any criminal. § 838.016(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1978 Fla. App. LEXIS 16294
...tion and conspiracy, all growing out of a single criminal episode. The trial court sua sponte entered an order requiring the state to elect between the counts of bribery under Section
838.015, Florida Statutes (1977), and unlawful compensation under Section
838.016, Florida Statutes (1977)....
CopyPublished | Florida 3rd District Court of Appeal | 2002 Fla. App. LEXIS 19376, 2002 WL 31870335
...or judgment of acquittal on the charge of unlawful compensation. In count I, Castillo was charged with placing A.S. in such a position that she was forced to engage in vaginal intercourse in lieu of his issuing her a ticket or arresting her for DUI. Section 838.016, Florida Statutes (1999), provides: (1) It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or oth...
CopyPublished | Florida 3rd District Court of Appeal
...the
Homestead city engineer.
Subsequent to the ethics committee’s investigation into his actions, the
Grand Jury rendered a five-count indictment charging Bateman with Count 1,
unlawful compensation for official behavior in violation of section
838.016(1),
Florida Statutes (2013); Count 2, unlawful compensation for exerting influence in
violation of section
838.016(2), Florida Statutes (2013); Count 3, exploitation of
official position in violation of section
125.69, Florida Statutes, (2013), and
Miami-Dade County Code 2-11.1(g); Count 4, acquiring a financial interest in
conflict with offici...
...motion for judgment of acquittal on Count 1.
We affirm in all respects.
COUNT 1. The State cross-appeals the trial court’s grant of judgment of
acquittal on Count 1, unlawful compensation or reward for official behavior in
violation of section
838.016(1), Florida Statutes (2013).1 Our standard for
reviewing a motion for judgment of acquittal is de novo. Reynolds v. State,
934
So. 2d 1128, 1145 (Fla. 2006).
1 Section
838.016(1), Florida Statutes (2013) provides,
(1) It is unlawful for any person corruptly to give, offer, or promise to
any public servant, or, if a public servant, corruptly to request, solicit,
accept, or agree to a...
...tion or in performance of a
public duty. The trial court in its detailed order granting acquittal of this count
examined the evidence presented, thoroughly parsed the statute, and delineated
exactly what the State was required to prove based on section 838.016(1) and the
Florida Standard Jury Instruction (Criminal) 19.4.
In granting acquittal, the trial court determined that the State did not present
evidence such that a rational trier of fact could find, beyond a reasonable doubt,...
... his power as Mayor to accomplish. We have similarly examined the record and
conclude that the State did not present evidence that Bateman’s acts, in his
capacity as Mayor, were the kind of official discretionary or duty bound acts that
fell within the proscriptions of section 838.016(1), i.e., that Bateman represented to
CHI that he had the official discretion to approve the pump permitting himself....
...and we affirm the trial court’s grant
of judgment of acquittal on Count 1.
COUNT 2. In Count 2, the jury found Bateman guilty of unlawful
compensation or reward for exerting influence on another official’s behavior, in
violation of section 838.016(2), Florida Statutes (2013).3 Subsection (2) makes it
unlawful for one public servant to corruptly accept any pecuniary gain to influence
another public servant to perform an act that is within the second public servant’s
discretion. Bateman argued in his motion for acquittal that the State had not
presented evidence that he acted corruptly when he entered into the CHI consulting
3 § 838.016....
CopyPublished | Florida 3rd District Court of Appeal | 1981 Fla. App. LEXIS 20795
compensation for official behavior, a violation of Section 838.-016(1), Florida Statutes (1979). She was adjudicated
CopyPublished | Supreme Court of Florida
...This instruction was adopted in 1981 and amended in September 2005 [
911
So. 2d 766] and 2017.
- 11 -
19.3 UNLAWFUL COMPENSATION OR REWARD TO PUBLIC
SERVANT FOR OFFICIAL BEHAVIOR
§
838.016(1), Fla....
...xercise of
reasonable care, should know, that it was given to influence a vote or other
action in which the officer, employee, or local government attorney was
expected to participate in his or her official capacity.
Give if applicable.
§ 838.016(3), Fla....
...within the official discretion or public duty of the public servant whose action
or omission was sought to be rewarded or compensated.
Lesser Included Offenses
19.3 UNLAWFUL COMPENSATION OR REWARD TO PUBLIC
SERVANT FOR OFFICIAL BEHAVIOR —
838.016(1)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt if only “gave”
777.04(1) 5.1
is charged
Comments
§
838.016(1), Fla....
...given.
This instruction was adopted in 1981 and amended in 2005 [
911 So. 2d 766],
and 2013 [
131 So. 3d 720], and 2017.
19.4 UNLAWFUL COMPENSATION OR REWARD BY PUBLIC
SERVANT FOR OFFICIAL BEHAVIOR
§
838.016(1), Fla....
...rcise of
reasonable care, should know, that it was given to influence a vote or other
action in which the officer, employee, or local government attorney was
expected to participate in his or her official capacity.
Give if applicable.
§ 838.016(3), Fla....
...was within the
official discretion or public duty of the defendant.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
Comments
§ 838.016(1), Fla....
...This instruction was adopted in 1981 and amended in 2005 [
911 So. 2d 766],
and 2013 [
131 So. 3d 720], and 2017.
- 18 -
19.5 UNLAWFUL COMPENSATION OR REWARD TO PUBLIC
SERVANT FOR OFFICIAL BEHAVIOR
§
838.016(2), Fla....
...reasonable care, should know, that it was given to influence a vote or other
action in which the officer, employee, or local government attorney was
expected to participate in his or her official capacity.
- 21 -
Give if applicable.
§ 838.016(3), Fla....
...within the influence of the public servant whose action or omission was sought
to be rewarded or compensated.
Lesser Included Offenses
19.5 UNLAWFUL COMPENSATION OR REWARD TO PUBLIC
SERVANT FOR OFFICIAL BEHAVIOR —
838.016(2)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None
Attempt if only “gave”
777.04(1) 5.1
is charged
Comments
§
838.016(1), Fla....
...given.
This instruction was adopted in 1981 and amended in 2005 [
911 So. 2d 766],
and 2013 [
131 So. 3d 720], and 2017.
19.6 UNLAWFUL COMPENSATION OR REWARD BY PUBLIC
SERVANT FOR OFFICIAL BEHAVIOR
§
838.016(2), Fla....
...rcise of
reasonable care, should know, that it was given to influence a vote or other
action in which the officer, employee, or local government attorney was
expected to participate in his or her official capacity.
Give if applicable.
§ 838.016(3), Fla....
...to be rewarded or compensated.
Lesser Included Offenses
No lesser included offenses have been identified for this offense.
- 25 -
Comments
§ 838.016(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2001 Fla. App. LEXIS 4757, 2001 WL 357045
...of limitations has expired. The State responds that the limitations period has been extended by statute, thus the action is timely. We agree with the State and deny the petition. Alvarez and the other petitioners have been charged with violations of section 838.016(1), Florida Statutes (1995), which reads: “(1) It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecunia...
...of unlawful compensation is either fraud or a breach of fiduciary obligation (the extension period otherwise being met). It seems quite clear that when a public servant’s performance of his public duty is corruptly “bought” as contemplated by Section 838.016(1), then a fraud 3 has been committed on the members of the public who have the right to expect their public servants to perform their public duties uninfluenced by such actions....
...obligation is of necessity a material element of the offense. As a consequence we conclude that the provisions of section
775.15(a) have been met and the prosecutions are therefore not time barred. The petition for a writ of prohibition is denied. . Section
838.016(4), Florida Statutes (1995) made the offense a felony of the third degree....
