Owens v. State, 91-2177

• Decision Date: 31 January 1992
• Docket Number: No. 91-2177,91-2177
• Citation: 593 So.2d 1113
• Parties: Derward OWENS, Appellant, v. STATE of Florida, Appellee. 593 So.2d 1113, 17 Fla. L. Week. D378
• Court: Florida District Court of Appeals

Page 1113

593 So.2d 1113

Derward OWENS, Appellant, v. STATE of Florida, Appellee.

No. 91-2177.

593 So.2d 1113, 17 Fla. L. Week. D378

District Court of Appeal of Florida,

First District.

Jan. 31, 1992.

Rehearing Denied March 4, 1992.

James P. Judkins of Davis, Judkins & Simpson, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Bradley R. Bischoff, Asst. Atty. Gen., for appellee.

KAHN, Judge.

Derward Owens, a former County Commissioner in Walton County, appeals his convictions for petit theft, grand theft, and official misconduct. We affirm the theft convictions ¹ and reverse the official misconduct conviction, remanding for a new trial.

Mr. Owens was apparently a strong believer in the concept of hands-on government. On January 13, 1987, he obtained permission from his fellow County Commissioners to go to northern Kentucky to inspect and purchase three items of heavy construction equipment. ² The minutes of the County Commission meeting for that date memorialize such a delegation of authority to Owens and include no restrictions on Owens' authority to act on behalf of Walton County. Owens, apparently acting as his own staff, contacted Walton County's shop foreman, George Montgomery, and instructed Mr. Montgomery to have the county-owned lowboy serviced, fueled and ready for a long trip. According to Montgomery's testimony, Owens made such a request on three occasions. Owens' request to the county shop to have the lowboy fueled up on three occasions was confirmed by Mr. Laird, another county employee. According to Laird, Owens gave instructions on three separate Thursday afternoons that Laird fuel the lowboy and leave it parked outside the gate.

The County Commission authorized Owens to purchase three pieces of equipment. The undisputed evidence in this record indicates that Owens instructed Harold Lee Petty, a heavy equipment operator for the county, to make five trips to Anna, Illinois for the purpose of picking up equipment. On each trip, Mr. Petty would pick up the county lowboy fully fueled, would drive north where he refueled and picked up the equipment, and would return the lowboy to the county yard empty.

It turns out that the county actually purchased the three pieces of equipment from a local Walton County firm known as B & H Earth Moving Contractors (B & H), through its principal, Clifton Hall. It was actually B & H that purchased the equipment in Anna, Illinois. According to Owens, the deal he struck with B & H was that the county would provide the lowboy, one driver, and pay half the fuel expenses. B & H would provide one driver, pay half the fuel expenses, and also pay the county's driver any overtime pay required by the trips. It is at this point in the factual scenario that Mr. Owens' problems begin to develop.

B & H arranged to purchase eight pieces of heavy equipment from a firm known as Denny & Sons in Illinois. The agreed price for these eight pieces of equipment was $59,500.00. Three of these eight pieces of equipment were the machines that the county authorized Mr. Owens to purchase. The crucial aspect of the deal between Owens and B & H, for the purposes of this case, was that Owens agreed with B & H that Walton County would pay $58,500.00 for the three pieces of equipment desired by the county. It was undisputed that the three pieces of equipment desired by the county could have been hauled in either two or three trips, and further undisputed that a county driver, aboard county equipment, made a total of five trips, at least partially on county time.

In support of the theft charges comprising Count I of the indictment, the state presented evidence that Owens obtained reimbursement for expenses, including fuel charges and a towing and repair charge for the lowboy, to which he was not entitled. In support of the theft charges in Count II, the evidence from the prosecution showed that Owens procured for his own benefit the use of a county truck, driver, and fuel for trips that had nothing to do with fulfilling his legitimate purpose of obtaining three pieces of equipment. We find that the evidence is sufficient to support these convictions and further hold that Owens is not protected from prosecution by the county's general delegation to him of authority to purchase three pieces of machinery. Nothing in the minutes of the County Commission meeting, entered into evidence during the trial, indicates that Owens was authorized to conduct personal business on his behalf, or on behalf of his friend, Mr. Hall, part and parcel to fulfilling the official county purpose of obtaining three pieces of equipment. Even were we to agree that the county's grant of authority implicitly carried with it authorization for Owens to make certain arrangements incidental to, but not expressly included in, the grant of authority, we would not be persuaded. Mr. Owens' determination, undisclosed to his fellow commissioners, to utilize county personnel, supplies, and equipment in order to provide B & H with five valuable pieces of machinery, at a cost to B & H of $1,000.00, did not reasonably fall within the Commission's delegation to Owens. Accordingly, the convictions on Counts I and II are affirmed.

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