Polakoff v. State

• Citation: 586 So.2d 385
• Decision Date: 08 August 1991
• Docket Number: No. 90-661,90-661
• Parties: 16 Fla. L. Weekly D2098 Sheldon POLAKOFF, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 385

586 So.2d 385

16 Fla. L. Weekly D2098

Sheldon POLAKOFF, Appellant, v. STATE of Florida, Appellee.

No. 90-661.

District Court of Appeal of Florida,

Fifth District.

Aug. 8, 1991.

Rehearing Denied Sept. 3, 1991.

Stuart I. Hyman of NeJame & Hyman, P.A., Orlando, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.

COWART, Judge.

This case involves the inter-relationship of section 687.071(3), Florida Statutes, of the usury statute and section 895.03(3), Florida Statutes, of the Florida Racketeer Influenced and Corrupt Organization (RICO) Act; problems in pleading violations of those statutes; the scope of a search warrant and the scope of a search pursuant to a search warrant.

(1) FACTS (Stated most favorably to State):

(1)(a) About January, 1988, the defendant made a loan of $10,000 in money to Ozzie Williams that was usurious under section 687.071(3), Florida Statutes.

(1)(b) Williams made, and the defendant received, as interest on Williams' usurious loan, payment in March, April and May, 1988.

(2)(a) About March, 1988, the defendant made a loan of $13,000 (or $15,000 or $17,000) in money to Haya Bigloo that was usurious under section 687.071(3), Florida Statutes.

(2)(b) Bigloo made, and the defendant received, interest payments of $500 in each of the three months of April, May and June, 1988, on the $13,000 (or $15,000 or $17,000) usurious loan.

(3)(a) In May, 1988, the defendant made a second loan of $3,000 (or $3,500) in money to Bigloo that was usurious under section 687.071(3), Florida Statutes.

(3)(b) In about June, 1988, Bigloo made, and the defendant received, one payment of $1,250 on account of principal and interest on the $3,000 (or $3,500) usurious loan.

(3)(c) On August 5, 1988, the police provided Bigloo with $2,500 in cash and videotaped Bigloo paying, and the defendant receiving, the $2,500 as the principal and interest balance due on the Bigloo $3,000 (or $3,500) loan.

(4) About June or July, 1988, the defendant made a loan of $10,000 in money to Lelia Bryant that was usurious under section 687.071(3), Florida Statutes.

(5) About July, 1988 the defendant made a loan of $3,000 in money to Stanford Russell that was usurious under section 687.071(3), Florida Statutes.

When Bigloo mentioned her loans to a sales tax investigator, the police were contacted and they provided Bigloo with funds and videotaped the payment stated in paragraph (3)(c) above. The police obtained a warrant to search the defendant's place of business for "documents recording the extension of credit to Haya Bigloo...." ¹ In executing the search warrant, the law enforcement officers searched other files and

seized checks and documents relating to other persons, including Ozzie Williams and Lelia Bryant and that information led to evidence of the usury offenses involving those individuals as set forth in paragraphs (1) and (4) above.

(2) CHARGES:

Based on the facts set forth in the numbered paragraphs above, the State not only charged (in Counts 2, 4, 6, 8 and 9) the defendant with the basic five counts (each a third degree felony) of "loan sharking" (section 687.07(3)) based on the usurious loans set forth in paragraphs (1)(a), (2)(a), (3)(a), (4) and (5) but the State repackaged the facts into an additional five criminal charges being four (Counts 1, 3, 5 and 7) first degree felony charges under the Florida RICO Act, section 895.03(3), Florida Statutes, and (Count 10) one second degree felony charge of transporting a monetary instrument or funds with the intent to carry on a specific unlawful activity in violation of section 896.101(2)(b)1., Florida Statutes.

(3) CONVICTIONS:

The defendant was convicted only of Count 1 (Racketeering by engaging in a pattern of racketeering activity, section 895.03(3)); Count 4 "loan sharking" (section 687.071(3), Florida Statutes) (relating to the $13,000 (or $15,000 or $17,000) loan to Bigloo [paragraph (2)(a) above]; Count 5 Racketeering by collection of an unlawful debt (relating to the $500 interest payments received on the $13,000 (or $15,000 or $17,000) loan to Bigloo [paragraph (2)(b) above] and the videotaped receipt on August 5, 1988 of the final ($2,500) payment on the $3,000 (or $3,500) Bigloo loan (paragraph (3)(c) above); and Count 8 "loan sharking" (section 687.071(3), Florida Statutes) (relating to the $10,000 loan to Lelia Bryant paragraph (4) above).

(4) ISSUES ON APPEAL:

The defendant raises twelve issues on appeal, several of which have multiple sub-issues but we find those considered below to be more than sufficient to dispose of this appeal.

(4)(a) AS TO COUNTS 4, 8 and 1

(4)(a)1.--FAILURE TO ALLEGE THE ELEMENT OF CORRUPT INTENT

Count 4 charges the defendant with the violation of the usury statute (section 687.071(3), Florida Statutes) as to the loan described in paragraph (2)(a) above. Count 8 charges the defendant with the violation of the usury statute (section 687.071(3), Florida Statutes) as to the loan described in paragraph (4) above. Count 1, in effect, charges the defendant with a violation of the RICO Act (section 895.03(3), Florida Statutes) by participating in an "enterprise" in a pattern of racketeering activity by engaging in two of five enumerated incidents of racketeering conduct, the five enumerated instances alleged being violations of the usury statute (section 687.071(3), Florida Statutes) as to the loans described in paragraphs (1)(a), (2)(a), (3)(a), (4) and (5) above. These are the same loans which were the basis for the five counts of "loan sharking" charged in Counts 2, 4, 6, 8 and 9.

The "loan sharking" allegations in Counts 4 and 8 and the five "loan sharking" allegations set forth as "incidents" or predicate crimes in the Count 1 Racketeering charge failed to include in the original sworn information allegations that the interest on the "extension of credit" (loans) described therein was "willfully and knowingly" charged, taken or received, as is a part of the definition of that crime contained in section 687.071(3), Florida Statutes. This omission was called to the trial court's attention by motion to dismiss Counts 4 and 8, which motion was denied. However, at some later time, perhaps at trial, the omitted words were interlined in handwriting into the allegations in Counts 4 and 8 and into the allegations of the five predicate crimes in Count 1.

Unlike most crimes which require only a general intent to do the act prohibited by criminal law, and also unlike the fewer crimes that require a specific intent on the part of the defendant at the time of the doing of the prohibited act, ² the crime

of usury peculiarly requires the existence of a "corrupt intent" to charge, take or receive more than the legal rate for the use of money loaned ³ and the allegation of that particular mens rea is embodied in the statutory words "willfully and knowingly" which are therefore essential elements of the definition of the statutory offense of usury that must be alleged in the charging document in order to adequately define and charge the crime and to meet the constitutional mandate that the accused be informed of the nature and cause of the accusation against him.

(4)(a)2. INEFFECTIVE AMENDMENT OF INFORMATION

The original amended information was sworn to by the State Attorney. There is some indication that the handwritten interlineation adding the essential but omitted words "willfully and knowingly" to the information were written either by the trial judge or the acting assistant state attorney. In either event the addition of those essential allegations by instanter amendment to the information after it was sworn to and filed does not conform to Article I, Section 15(a), Florida Constitution, which requires an information under oath filed by the prosecuting officer of the court.

As to Counts 1, 4 and 8, the information was fatally defective as originally sworn to and filed. The amendment adding the essential allegations was not under oath and was ineffective and the convictions based on those counts are invalid and are reversed.

(4)(b) AS TO COUNT 5

Generally criminal acts, prohibited by the Florida RICO Act (Chapter 895, Florida Statutes), require "racketeering activity" (or predicate crimes), ⁴ an "enterprise" ⁵ and a "pattern of racketeering activity." ⁶ However, section 895.03(3), Florida Statutes, in essence makes it unlawful for any person to conduct or participate in an "enterprise through a pattern of racketeering activity or [emphasis added] the collection of an unlawful debt." The definition of "unlawful debt" in section 895.02(2) refers to many statutes making certain debts legally unenforceable in this state because contracted in violation of statutes prohibiting gambling or Chapter 687, Florida Statutes, relating to interest and usury.

In summary, the usury statutes (sections 687.071(2) and (3), Florida Statutes), make it a crime to willfully and knowingly "charge, take or receive" interest Sections 687.02 and 687.03 define contracts for interest in excess of 18% per annum to be usurious and make it unlawful to reserve, charge or take such interest. Section 687.071(2) makes it a second degree misdemeanor to willfully and knowingly charge, take or receive interest in excess of 25% per annum. Section 687.071(3) makes it a third degree felony to willfully and knowingly charge, take or receive interest in excess of 45% per annum.

in excess of a specified rate. The RICO Act (section 895.03(3)) makes it illegal for a person to participate through an enterprise in a pattern of racketeering activity which includes the crime of usury under Chapter 687. Section 895.03(3) of the RICO Act also makes it a crime for a person to participate through any enterprise to collect certain unlawful debts which include a debt contracted in violation of the usury statute. As to the two Haya Bigloo loans and the payments thereon as set forth in paragra...