Griffis v. Fla. Fish & Wildlife Conservation Comm'n

• Decision Date: 28 March 2011
• Docket Number: No. 1D10–3492.,1D10–3492.
• Citation: 57 So.3d 929
• Court: Florida District Court of Appeals
• Parties: Edgar Emery GRIFFIS, Appellant,v.FLORIDA FISH & WILDLIFE CONSERVATION COMMISSION, Appellee.

57 So.3d 929

Edgar Emery GRIFFIS, Appellant,

v.FLORIDA FISH & WILDLIFE CONSERVATION COMMISSION, Appellee.

No. 1D10–3492.

District Court of Appeal of Florida, First District.

March 28, 2011.

F. Alan Cummings and Christopher R. Conley of Smith, Currie & Hancock, LLP, Tallahassee, for Appellant.Mark Henderson, Assistant General Counsel, Florida Fish and Wildlife Conservation Commission, Tallahassee, for Appellee.SCHWARTZ, ALAN R., Senior Judge.

The Fish & Wildlife Commission revoked the commercial saltwater fishing privileges of appellant, Edgar E. Griffis, and assessed a $5,000 administrative penalty pursuant to section 379.366(4)(b), Fla. Stat. (2009), which provides in pertinent part:

Any commercial harvester receiving a judicial disposition other than dismissal or acquittal on a charge of theft of or from a trap as prohibited by this paragraph shall, in addition to the penalties specified in s. 379.407 and this section, permanently lose all saltwater fishing privileges, including any saltwater products licenses, blue crab endorsements, and blue crab trap tags allotted to him or her by the commission. [e.s.]

Griffis appeals. We reverse.

The basis of the administrative action was that Griffis had pled no contest in the Brevard County circuit court to count IV of an amended information which in its entirety alleged two counts of molesting blue crab traps (counts I and II), one of unlawful removal of blue crab trap contents (count III), and one of grand theft (count IV).¹ After plea negotiations, the assistant state attorney nolle prossed counts I, II, and III—which if properly pursued, might have invoked the Commission's authority under section 379.366(4)(b). In return for that action and a sentence of one year probation and a withhold of adjudication, appellant pled no contest to the remaining count IV, a vanilla charge which alleged a generic theft of “personal property” in the broadest terms and without specific reference to the offenses prohibited by section 379.366 or anything like them.

We hold that this fact pattern does not qualify under section 379.366(4)(b), since it was patently not “a judicial disposition other than dismissal or acquittal on a charge of theft of or from a trap as prohibited by this paragraph....” Our decision is required by an amalgam of several well-established rules:

1. The law is well-settled that “[s]tatutes imposing a penalty must always be construed strictly in favor of the one against whom the penalty is imposed and are never to be extended by construction.” See Holmberg v. Dep't of Natural Res., 503 So.2d 944, 947 (Fla. 1st DCA 1987); see also State ex rel. Volusia Jai–Alai, Inc., 304 So.2d at 477 (holding that “an administrative agency's authority to suspend or revoke licenses is restricted to the grounds enumerated in the statute[,]” and determining that statute authorizing sanctions against corporate officers, directors, and employees could not be applied to penalize stockholders, even if such application would further its legislative purpose).

2. Even more specifically, as the court said in In re Weathers, “[w]here a board or officer is granted the right and power to revoke a license for certain named reasons, causes, or crimes, set out in the statutes, a license may not be revoked for any other or different cause or causes not clearly within the provisions of the statutes....” 159 Fla. 390, 31 So.2d 543, 544 (1947) (quoting Ky. State Bd. of Dental Exam'rs v. Crowell, 220 Ky. 1, 294 S.W. 818, 819 (1926)); see by analogy Mitchel v. Cigna Prop. and Cas. Ins. Co., 625 So.2d 862, 864–65 (Fla. 3d DCA 1993) (obligation to pay damages caused by striking a coral reef in violation of section 258.083, Florida Statutes (1991), not excluded from liability coverage as a “penalty,” because it was ordered as “restitution” under the general provisions of section 775.089, Florida Statutes (1991), rather than imposed as a “civil penalt[y] for damage to coral reefs in state waters” imposed under sections 253.04(1), and (3)).

3. “[A] defendant may not be convicted of a crime that has not been charged by the State.” Jaimes v. State, 51 So.3d 445 (Fla.2010). See Pittman v. State, 22 So.3d 859, 862 (Fla. 3d DCA 2009) (Defendant charged with sexual battery could not be convicted of lewd or lascivious battery as a lesser-included offense, where nothing in the information alleged that the victim was 12 or older but less than 16, although such evidence was admitted at trial); Cogbill v. State, 940 So.2d 537, 539 (Fla. 1st DCA 2006) (“where an offense can be committed in more than one way, instructing the jury on an alternate theory not charged in the information constitutes fundamental error”); Rose v. State, 507 So.2d 630, 632 (Fla. 5th DCA 1987) (“It is elementary that the conviction of a crime not charged violates constitutional due process.”).

Putting these principles together yields the inevitable conclusion that section 379.366(4)(b), cannot apply because the charge to which the appellant pled was not one specified in section 379.366(4)(b).

We make two additional observations.

First, the Commission relied below entirely on the effect of the plea. For reasons unknown, it did not even allege or attempt to prove by admissible evidence that Griffis indeed actually tampered with someone else's blue crab trap.

Second, and perhaps more importantly, there can be no doubt that the manner in which the Brevard County criminal case was resolved to the satisfaction of both the State Attorney and the defendant was driven by the mutual and obvious intent to avoid exactly the result reached below. The Commission's action thus has created the appearance, if not the reality, of a governmental “gotcha” in which one agency of the State broke another's word. State v. Frazier, 697 So.2d 944, 945 (Fla. 3d DCA 1997) (“the prosecution, having reaped the benefits of the agreement by securing the guilty plea, must be held to its detriments ... the state, above all parties, must keep its word.”); see Velazquez v. State, 870 So.2d 863 (Fla. 3d DCA 2004) (“[T]he state, above all parties, must keep its word.” (quoting Frazier, 697 So.2d at 945)); Echevarria v. State, 845 So.2d 340, 341 (Fla. 3d DCA 2003) (same); State v. Hargis, 328 So.2d 479, 481 (Fla. 1st DCA 1976) (Rawls, J., dissenting) (“If ... ‘men must turn square corners when they deal with the...