Longo v. State

• Decision Date: 01 May 1991
• Docket Number: No. 89-1361,89-1361
• Citation: 16 Fla. L. Weekly 1173,580 So.2d 212
• Parties: 16 Fla. L. Weekly 1173 John LONGO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 212

580 So.2d 212

16 Fla. L. Weekly 1173

John LONGO, Appellant, v. STATE of Florida, Appellee.

No. 89-1361.

District Court of Appeal of Florida,

Fourth District.

May 1, 1991.

Rehearing Denied June 24, 1991.

Charles W. Musgrove, West Palm Beach, for appellant.

Robert W. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee.

POLEN, Judge.

This consolidated appeal concerns appellant's judgment, sentence, and restitution order following a jury verdict finding him guilty of one (1) count of organized fraud and thirty-three (33) counts of grand theft. We affirm appellant's judgment as to the organized fraud count and twenty-nine (29) of the grand theft counts; however, we reverse his judgment as to four (4) of the grand theft counts, as venue was lacking. We reverse his sentence and remand for resentencing. We affirm the restitution order, reversing only those portions which require appellant to pay restitution to people not named in the information, or to people named in counts of the information on which appellant received, or should have received, a judgment of acquittal.

The charges against appellant arose from his operation of First Mortgage Trust (hereinafter FMT). Appellant and his codefendant solicited investments, promising exclusive first and second mortgages on select real estate. Investors were attracted to FMT by newspaper advertisements and brochures promising sixteen to eighteen percent (16-18%) interest on investments. Another brochure indicated that FMT had been in business since 1975 and had twenty (20) million dollars in assets. Most investors were told that there would be no pooling of funds. Investors were told that the maximum amount of the mortgage on any property would be seventy-five percent (75%) of the appraised market value.

Testimony revealed that FMT's parent corporation, First Federal Trust, had been formed just prior to appellant's solicitation of funds in 1987. Investors' money was pooled in one of several accounts held by FMT, and investors were sent interest payments from the principal they had invested. FMT controlled only five (5) properties, all of which were owned by appellant Longo, FMT, Longo's relatives, or Longo's codefendant. Contrary to what many investors were told by appellant, they were not exclusive holders of second mortgages. Some received second mortgages which they shared with others, two investors had been given a mortgage on property which was in foreclosure, and some never received any recorded mortgage documents. Appellant falsely represented to many investors that he was a licensed mortgage broker. Testimony also revealed that mortgages on all five (5) of the properties exceeded seventy-five percent (75%) of the appraised market value.

We address appellant's arguments that the trial court erred in: (1) refusing to direct a verdict on the organized fraud count; (2) refusing to direct a verdict on four counts stemming from transactions in Palm Beach County; (3) admitting evidence not timely disclosed to the defense without a Richardson hearing; (4) limiting cross-examination and denigrating defense counsel; (5) utilizing an improper scoresheet during sentencing; and (6) awarding restitution to alleged victims named in counts upon which appellant received a judgment of acquittal, as well as awarding restitution to people who were not named in the information.

Appellant also finds error in the judgment form itself. The state concedes that the form reflects adjudications on nonexistent grand theft counts. On remand, these errors in the judgment form should be corrected.

The trial court properly denied appellant's motion for judgment of acquittal on the organized fraud count. Appellant was charged with organized fraud under section 817.036, Florida Statutes (1983), which provided:

817.036 Organized fraud defined; penalties.

(1) As used in this section, the term "organized fraud" means a scheme or operation by fraud or misrepresentation whereby any person obtains any property of an aggregate value of $50,000 or more from five or more victims.

(2) Any person who commits the crime of organized fraud shall, upon conviction, be guilty of a felony of the first degree.... ¹

The testimony adduced at trial was sufficient to withstand a motion for judgment of acquittal on the organized fraud count. The evidence revealed that appellant made numerous misrepresentations to potential investors, who ultimately gave appellant hundreds of thousands of dollars.

However, the trial court did err in refusing to direct a verdict on four grand theft counts which concerned transactions that occurred solely in Palm Beach County. ² The state argues that venue was proper in Broward County on these counts pursuant to section 910.05, Florida Statutes (1983), which provides:

If the acts constituting one offense are committed in two or more counties, the offender may be tried in any county in which any of the acts occurred.

However, testimony revealed that the acts constituting grand theft, knowingly obtaining the property of another with intent to temporarily or permanently deprive the other person of a right to the property, occurred solely in Palm Beach County with respect to these counts. Therefore venue was proper only in Palm Beach County for these four counts, and appellant was entitled to a judgment of acquittal.

Appellant also argues that the trial court erred in failing to hold a Richardson ³ hearing concerning a letter, graphs, and charts used by the state. During trial, the state called a property appraiser to testify concerning the value of the five properties on which FMT placed mortgages. As he...