Capiro v. State
| Decision Date | 12 September 2012 |
| Docket Number | No. 4D11–331.,4D11–331. |
| Citation | 97 So.3d 298 |
| Parties | John H. CAPIRO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
97 So.3d 298
John H. CAPIRO, Appellant,
v.
STATE of Florida, Appellee.
No. 4D11–331.
District Court of Appeal of Florida,
Fourth District.
Sept. 12, 2012.
[97 So.3d 299]
Jason T. Forman of Law Offices of Jason T. Forman, P.A., and Russell J. Williams of Law Offices of Russell J. Williams, P.A., Fort Lauderdale, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, West Palm Beach, for appellee.
DAMOORGIAN, J.
John Capiro appeals his conviction and sentence for grand theft over $100,000, raising a number of issues. We find merit to his claim of ineffective assistance of counsel and reverse only as to that issue.1
Capiro's conviction was the result of a business deal gone wrong. In 2006, Capiro started a commercial mortgage lending company. Two of Capiro's friends (the “victims”) expressed an interest in Capiro's business. Capiro agreed to make the victims part owners in the business, and the victims in turn loaned Capiro $250,000. Capiro and the victims, without the assistance of counsel, memorialized their agreement in two documents: a Business Agreement and a Promissory Note.
The structure of the $250,000 loan is somewhat ambiguous. The Business Agreement did not make any reference to the loan or otherwise dictate how the loan was to be used, and the Promissory Note indicated that the loan was being made to Capiro and his wife in their individual capacity. The terms of payment outlined in the Promissory Note dictated that Capiro was to make monthly “interest only” payments with a return of the principal in three years. It did not outline any restrictions on Capiro's use of the loan funds. However, an addendum to the Promissory Note suggested that the loan was made to the business so that it could qualify for a commercial lending license.2 Moreover, one of the victims testified that the loan
[97 So.3d 300]
was made only to satisfy the licensing requirements for the lending business, and Capiro understood that he was not entitled to spend the principal for personal uses.
Capiro ran into financial problems shortly after he formed the lending business. He continued to make the required monthly “interest only” payments on the loan but, unbeknownst to the victims, he began using the principal to pay for his personal expenses. Soon thereafter, he spent all of the loan proceeds and was no longer able to make the required monthly interest payments. After Capiro informed the victims that he had spent all of the money and would not be able to pay it back, the victims sued Capiro. They also contacted the sheriff's office, and Capiro was charged with grand theft over $100,000.
At trial, Capiro admitted that he borrowed, spent, and did not pay back the loan funds. However, he testified that he believed he was entitled...
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