Miller v. State, 72--777
| Citation | 285 So.2d 41 |
| Decision Date | 03 October 1973 |
| Docket Number | No. 72--777,72--777 |
| Parties | Robert C. MILLER, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Robert E. Jagger, Public Defender, and Jeffrey L. Myers, Asst. Public Defender, Clearwater, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Appellant was charged in a 12-count information with violation of the Sale of Securities laws, Chapter 517, Florida Statutes, F.S.A. He entered a plea of not guilty at arraignment. Appellant filed pretrial motions attacking the statute and the information under which he was charged. The said motions were denied by the trial court.
After the jury was sworn, counsel for appellant, while in the process of making his opening statement to the jury was interrupted by the prosecutor and objection was made by him to the statements of appellant's counsel. The trial judge excused the jury and heard legal arguments of counsel for the parties that primarily concerned the issue of whether the state's evidence was securities as a matter of law. The evidence consisted of stock certificates and promissory notes. The trial court, after due deliberation, ruled that the said evidence was securities as a matter of law.
Faced with this adverse ruling, counsel for appellant changed the plea of not guilty to a plea of nolo contendere. The record discloses that counsel for the parties entered into a stipulation, which was approved by the trial court, in which appellant clearly reserved the right to appeal the trial court's rulings on all pretrial motions and matters arising during the trial. There is, of course, ample authority supporting this proposition of law. 1
After the trial court determined that the plea of nolo contendere was entered voluntarily, knowingly and understandingly, it was accepted by the court and appellant was found guilty as charged. Presentence investigation followed. Appellant was sentenced to serve a term of six months to three years in the state penitentiary. Appellant filed this timely appeal.
We are presented with the sole issue of whether the trial court erred by taking the issue away from the jury by its ruling declaring that the documentary evidence referred to above was securities as a matter of law.
We have reviewed the record, read the briefs of the respective parties, and heard oral argument, and conclude that the trial court erred. What causes us real concern in this appeal is that the trial court's ruling amounted to a partial, if not a total, directed verdict of guilty, and, as a consequence, stripped the appellant of his right to have the jury determine this crucial and vital issue. As we read the record it is absolutely clear that the appellant's primary and perhaps only meritorious defense to the charge against him was bottomed on the premise that the said documents were not securities as a matter of fact.
Appellant's contention on appeal is that the alledged transactions involved in this case were not sales of securities, but were, on the contrary, personal loans and/or an investment in a joint venture in a Bogota, Colombia corporation. The appellant does not deny or refute that money did change hands. The issue remaining and unresolved and, we submit, should have been presented to the jury for its determination, is whether said transactions were within the purview of the Sale of Securities laws.
In Roe v. United States, 5th Cir. 1961, 287 F.2d 435, the court reversed the convictions of appellants for illegal sale and delivery through the mail of securities in violation of registration requirements of the Securities and Exchange Commission. The trial judge had instructed the jury that the mineral rights sold and delivered were securities within the Federal Securities and Exchange Act. Appellants, on the other hand contended that the sale of the mineral rights in specific parcels of property would not constitute the sale of a 'security' under the Act. The appellate court held:
'Thus we determine that, as a matter of law, the evidence of these transactions, if credited, would constitute the sale or delivery of an 'investment contract,' hence a 'security'...
To continue reading
Request your trial
-
People v. Figueroa
...At least one sister state court has reached a similar conclusion, relying heavily on a lengthy quotation from Roe. (Miller v. State (Fla.App.1973) 285 So.2d 41, 42; see also Hentzner v. State (Alaska 1980) 613 P.2d 821, 829 [suggestion that on retrial issue should be determined by jury].)Re......
-
State v. Fried, 77-682
...to dismiss the Information, we believe that it was appropriate for the trial court to make this determination. Compare Miller v. State, 285 So.2d 41 (Fla. 2d DCA 1973). Therefore, we have concluded that the trial court did not err in dismissing the In the light of this determination, it is ......
-
Jackson v. State, 73--1183
...Cir. 1973); United States v. Sepe, 474 F.2d 784 (5th Cir. 1973); Cameron v. State, 291 So.2d 222 (4th D.C.A.Fla.1974); Miller v. State, 285 So.2d 41 (2d D.C.A.Fla.1973); Walker v. State, 281 So.2d 41 (2d D.C.A.Fla.1973); See Andersen v. State, 274 So.2d 228 (Fla.1973). In Chesebrough v. Sta......
-
State v. Miller, 44740
...367 STATE of Florida, Petitioner, v. Robert C. MILLER, Respondent. No. 44740. Supreme Court of Florida. March 13, 1974. Certiorari denied. 285 So.2d 41. ADKINS, C.J., and ROBERTS, BOYD and McCAIN, JJ., DEKLE, J., dissents. ...
-
Criminal enforcement of Florida's securities laws.
...So. 2d 1003, 1005 (Fla. 2d D.C.A. 1983), review denied, 449 So. 2d 265 (Fla.1984). (6) Howey, 328 U.S. at 298-99. (7) Miller v. State, 285 So. 2d 41, 42 (Fla. 2d D.C.A. (8) Id. While the state cannot have a court determine that a particular instrument meets the statutory definition of "secu......