Clement v. State, No. 2D04-1253.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: STRINGER.
• Citation: 895 So.2d 446
• Parties: William E. CLEMENT, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 2D04-1253.
• Decision Date: 02 February 2005

895 So.2d 446

William E. CLEMENT, Appellant,
v.
STATE of Florida, Appellee

No. 2D04-1253.

District Court of Appeal of Florida, Second District.

February 2, 2005.

Rehearing Denied March 22, 2005.

W. Cort Frohlich, Louise Hanaoka, and Brian M. Beason of Wilkins, Frohlick, Jones, Russell, Hanaoka & Mizell, P.A., Port Charlotte, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

STRINGER, Judge.

William Clement challenges his conviction for official misconduct in violation of

895 So.2d 447

section 839.25, Florida Statutes (1999).¹ Because we conclude that section 839.25 does not apply to candidates for public office, we reverse his conviction

Clement ran for and won the November 2000 race for Sheriff of Charlotte County, Florida. Three years later, the State charged him with official misconduct contrary to section 839.25 in connection with his campaign. Specifically, the information alleged that in October 2000, he knowingly falsified or caused another to falsify his Campaign Treasurer's Report by falsely stating in the report that certain campaign contributions were received from specified individuals and/or entities, knowing that they were not the source of the purported campaign contributions.

Prior to the jury trial, Clement filed an amended motion to dismiss that argued, in part, that his actions as a candidate for public office did not fall within the purview of conduct proscribed by section 839.25. The trial court, relying on State v. Short, 483 So.2d 10 (Fla. 2d DCA 1985), denied the motion to dismiss. A jury found him guilty of official misconduct.

As we explained in State v. Pasko, 815 So.2d 680, 681 (2002), "[t]he purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in dispute. Accordingly, the standard of our review of the trial court's order is de novo." (Citation omitted.)

Section 839.25(1) makes official misconduct a third-degree felony:

"Official misconduct" means the commission of the following act by a public servant, with corrupt intent to obtain a benefit for himself or herself or another or to cause unlawful harm to another: knowingly falsifying, or causing another to falsify, any official record or official document.

Clement argued that section 839.25 does not apply because a public servant does not include a candidate for office. The term "public servant" is not...