Amison v. State

Citation332 So.3d 593
Decision Date09 February 2022
Docket Number1D18-1312, No. 1D18-1313
Parties Jennifer M. AMISON, Appellant, v. STATE of Florida, Appellee. Joseph Amison, Appellant, v. State of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Michael L. MacNamara of The MacNamara Law Firm, P.A., Tallahassee; and Mark V. Murray of Law Offices of Mark V. Murray, Tallahassee, for Appellant Jennifer Amison.

Kevin R. Alvarez of Law Office of Kevin Alvarez, P.A., Tallahassee, for Appellant Joseph Amison.

Ashley Moody, Attorney General; Trisha Meggs Pate, Assistant Attorney General; and Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.

OPINION ON MOTION FOR REHEARING

Kelsey, J.

On consideration of the motion for rehearing of Appellant Jennifer M. Amison, we withdraw our prior opinion, grant the motion for rehearing, and substitute the following opinion in its place.

Spouses Jennifer ("Jennie") and Joseph ("Mike") Amison appeal their respective judgments and sentences for multiple financial crimes, for which they were tried together. Because of the significant overlap in facts and legal issues, we consolidate their appeals for disposition. We have carefully considered all of both Appellants’ arguments, reverse and remand in part, and affirm as to all other issues.

I. Facts.

From 2015 to 2017, the Amisons were struggling financially. Jennie was a Tallahassee police officer, and Mike was a Tallahassee firefighter. They have three children. They also owned a local business, Artistic Awards & Engraving, but it was losing money. They were behind in their household rent.

From 2016 to 2017, two Tallahassee firefighters died, and a third firefighter's daughter was killed in a car accident. Jennie and Mike decided to raise money to benefit these three families. Jennie admitted that she was the moving force behind the idea and the acts that followed. She started spreading the word and raising money in December of 2016.

The Amisons planned to host a barbecue dinner in February of 2017 as their main fundraiser, selling meal tickets and raffle tickets. Using their Artistic business, the Amisons also obtained themed merchandise such as t-shirts, challenge coins, drink tumblers, and decals, which they sold to raise funds. Pre-event sales and donations were brisk. The Amisons received cash and check donations independent of dinner and merchandise sales. Checks were sometimes made out to Jennie personally, sometimes to Artistic, and sometimes to Just Cause, the name the Amisons put on the bank account later opened for their fundraising. Some cash and check donations for the fundraiser were deposited to the Artistic account. Recordkeeping for donations and expenses was imprecise at best.

Jennie told one friend they had sold about 400 meal tickets, and told another friend they had sold about 650 tickets. Testimony indicated the dinner was a great success—hundreds of people attended. The credit-card machine was not working. Attendees without pre-purchased meal tickets bought tickets on-site, some by check and some with cash, and there were cash tips and donations. Large amounts of cash were donated—"piles" of it according to at least one witness—which the Amisons would not allow anyone to count. Jennie told a friend via text message that the dinner event alone raised about $18,000 before expenses, and about $20,000 including presales. That did not include other donations, or funds raised from merchandise sales. The available forensic evidence indicated that $28,033.90 was raised altogether.

About a week after the dinner (about two months after fundraising started), the Amisons opened the "Just Cause" bank account for the funds raised. Their initial deposit was $335. A week later, they made four separate deposits totaling $6,598. Both the Artistic account and Just Cause account appear to have been used for personal expenses at times.

Several months passed after the barbecue dinner, during which the Amisons did not distribute proceeds to the three firefighter families and evaded inquiries about the money—until contacted by law enforcement. Deposits to the Just Cause account did not match donations believed to have been received. Before the Amisons distributed any money, nearly $7,000 from an unknown source was deposited to the Just Cause account. One deposit was in an amount nearly identical to the amount Mike's parents withdrew from their own account only two days earlier, but which Mike's father testified was withdrawn for a vacation.

Only after that late deposit, in May 2017, did the Amisons distribute funds to the three firefighter families: a total of $12,396.33. From the $28,033.90 believed to have been raised, $8,877.82 was attributed to expenses incurred, leaving a shortfall of over $6,700. In July of 2017, the Amisons deposited $10,400 in non-paycheck funds to their personal bank account, which rapidly decreased to a balance of about $1,500.

While all of that fundraising was going on, the Amisons were still having trouble paying their household rent. They made partial rent payments from the Artistic account in November and December of 2016—about the time they started planning the firefighter fundraising drive. In 2017, they told their landlord—falsely—that Jennie had terminal cancer

, and used this ploy for sympathy to persuade the landlord not to evict them. They made partial payments in 2017, but by the time they moved out later in 2017, they were over $12,000 in arrears.

II. Charges and Verdicts.

The case went to trial on a seven-count amended information against "Jennifer Amison, and/or Joseph Amison." The information identified the relevant time frame as between approximately January 1, 2015, and September 27, 2017. Jennie testified at trial, but Mike did not.

Count I alleged a violation of Florida's RICO (Racketeer Influenced and Corrupt Organization) Act, chapter 895 of the Florida Statutes, and alleged that the underlying acts violated chapters 812, 817, and 496 of the Florida Statutes. The information alleged ten predicate acts, including in relevant part the following: A, grand theft from the landlord; B, grand theft from the three families; C, organized scheme to defraud the landlord and the three firefighter families; and D, failure to apply charitable contributions, a violation of section 496.415(16), Florida Statutes. The jury found both Jennie and Mike guilty of the RICO count and of predicates A, B, C, and D.

Count II alleged grand theft from the Amisons’ landlord in violation of chapter 812, the same as predicate act A under Count I. The jury found both Jennie and Mike guilty of Count II.

Count III alleged grand theft from the three families in violation of chapter 812, which was also charged as predicate act B for the RICO charges of Count I. Both Jennie and Mike were found guilty of Count III.

Count IV charged organized scheme to defraud as a violation of Florida's Communications Fraud Act, section 817.034 of the Florida Statutes. This was also predicate act C supporting the RICO charges of Count I. The jury found both Jennie and Mike guilty.

Count V alleged failure to apply charitable contributions in violation of chapter 496 of the Florida Statutes, also alleged as predicate act D for the RICO charges. Both Jennie and Mike were found guilty of this.

Count VI alleged grand theft of a donor, Ms. Bodenhamer, as to which the jury found Jennie guilty and Mike not guilty.

Finally, Count VII alleged petit theft of another donor, Ms. Brown. On this charge, the jury acquitted both of the Amisons.

III. Jennie's Judgments and Appellate Arguments.

At trial, Jennie and her counsel agreed to the strategy of admitting her guilt of theft, organized scheme, and attendant RICO incidents as to the landlord-related charges. Counsel told the jury to "check guilty" each time it saw the landlord's name. The trial court conducted a colloquy in which Jennie confirmed that she agreed with this strategy.

The jury acquitted Jennie of the single petit theft count, but convicted her of the grand theft, organized scheme to defraud, and failure to apply contributions crimes alleged as Counts II, III, IV, and V. The jury also convicted her of the parallel predicate acts A through D for the RICO charge.

Jennie moved for a new trial and judgment of acquittal, asserting among other things a double-jeopardy violation—i.e., that under the Fifth Amendment to the United States Constitution and Article 1, section 9, of the Florida Constitution, she cannot be convicted for both grand theft and organized scheme to defraud because they were based on the same conduct. The trial court denied Jennie's post-trial motions, and sentenced her to five years in prison plus five years of probation to follow. In arriving at this sentence, the trial court emphasized Jennie's greater culpability, her lying and deceit, and her betrayal of her position of trust. The court ordered the Amisons jointly and severally to make restitution of $14,370 to the landlord and $11,942.77 to the families. Jennie agreed with these amounts, but argued she was entitled to additional credit for amounts already paid to the families even though part of the money ultimately disbursed may have been part of what was wrongfully withheld or may have come from other sources.

Jennie raises multiple arguments on appeal. She argues the RICO and grand theft judgments violated her double-jeopardy rights because they involved the same victims and the same currency; i.e., the same conduct. As to grand theft of the landlord, she argues that her mere failure to pay rent, under the circumstances, was not a chargeable crime. She argues the evidence only supported a verdict of grand theft as to the three firefighter families, and no other predicate acts, and therefore the RICO judgment was error. As part of her argument that there were insufficient predicate acts to support a RICO violation, she argues that the charge under section 496.415(16) for failure to...

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