State v. Diaz
Decision Date | 13 February 2002 |
Docket Number | No. 3D01-1149.,3D01-1149. |
Citation | 814 So.2d 466 |
Parties | The STATE of Florida, Appellant, v. Manuel Ceferino DIAZ, Appellee. |
Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, and Michael J. Neimand, Assistant State Attorney; Katherine Fernandez Rundel, State Attorney, and Angelica D. Zayas, Assistant State Attorney, for appellant.
Tew, Cardenas, Reback, and C. Thomas Tew, and Joseph A. DeMaria; Bierman, Shohat, Loewy & Klein, Donald I. Bierman, and Ira N. Loewy, for appellee.
Before SCHWARTZ, C.J., and COPE, and GERSTEN, JJ.
Rehearing, Rehearing En Banc and Certification Denied May 14, 2002.
The State of Florida appeals the trial court's order dismissing one count of first degree grand theft against appellee, Manuel Ceferino Diaz ("defendant"), as timebarred. We affirm.
After Hurricane Andrew destroyed plants and trees throughout Miami-Dade County, the county solicited bids and contracted with the defendant, as president of Manuel Diaz Farms, Inc., to deliver and install new foliage. The county submitted 450 separate purchase orders to defendant's company from May 1993 through May 1995, each for specific foliage for a specific area. The contract could be terminated by either party at any time.
On May 5, 1999, the State charged Guillermo Antonio Cutie ("Cutie"), a public employee, with eight counts of official misconduct in relation to invoices submitted by Manual Diaz Farms, Inc. Over a year later, on August 24, 2000, the State charged the defendant with one count of first degree grand theft in violation of Section 812.014, Florida Statutes (1995), in connection with twenty-three invoices for payment issued to the county between July 7, 1994, and May 22, 1995. The defendant successfully moved to dismiss the charges on twenty-two of the invoices which were beyond the five-year statute of limitations for grand theft. See § 812.035(10), Fla. Stat. (1995). The State was permitted to amend the information to make reference only to the last invoice, dated May 22, 1995, which remained within the five-year statute of limitations under an earlier agreement by the parties to toll the statute of limitations on or about May 17, 2000. However, the State chose to appeal the dismissal.
Section 812.035(10) provides that notwithstanding any other provision of law, a criminal or civil action for grand theft may be commenced any time within five years after the cause of action accrues. The State contends that all twenty-three invoices were part of a common scheme or plan to defraud the county and should be treated as a continuing offense within the five-year statute.
We disagree, based upon a plain reading of Section 812.014. Section 812.014 provides that a person is guilty of grand theft if he knowingly obtains or uses the property of another with intent to temporarily or permanently deprive the other person of that right. The statute is silent on the issue of continuing offenses, with no suggestion that the legislature intended to make grand theft a continuing offense. See State v. King, 282 So.2d 162 (Fla.1973)
. See also O'Malley v. Mounts, 590 So.2d 437 (Fla. 4th DCA 1991)(Section 812.014 is the same as the pre-amended version) language of current . Each invoice was a separate taking, concluding the specific work requested in each county purchase order. Therefore, only the final invoice, dated May 22, 1995, falls within the five-year statute of limitations.
We affirm the trial court's dismissal of the twenty-two counts, finding the State failed to charge the defendant within the five-year statute of limitations, despite its knowledge of inconsistencies in the Manual Diaz Farms's invoices as early as May 1999, the time of Cutie's indictment.
Affirmed.
I respectfully dissent on the statutory construction issue.
The trial court's order sets forth the facts and relevant statutes, as follows:
(Emphasis added).
(Emphasis added).
Order, December 15, 2000, at 2-4, 7 (footnote omitted).
The trial court ruled that the prosecution was time-barred as to the first twenty-two invoices. The court dismissed count one of the information, with leave to amend so as to proceed with the prosecution on the twenty-third invoice only. The State has appealed.
The State in this case is relying on the statute-of-limitations extender which states, "An offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated." § 775.15(4), Fla. Stat. (1993) (emphasis added).
This is a prosecution under the theft statute. The portion of the statute relied on by the State provides, "Amounts of value of separate properties involved in thefts committed pursuant to one scheme or course of conduct, whether the thefts are from the same person or several persons, may be aggregated in determining the grade of the offense." Id. § 812.012(9)(c) (emphasis added).
The theft statute allows the...
To continue reading
Request your trial-
Reyes v. State, 3D02-1224.
...result of a series of acts, separated in time, place, or circumstance, each taking is a separate and distinct offense); State v. Diaz, 814 So.2d 466 (Fla. 3d DCA 2002)(finding each invoice to be a separate taking and, therefore, only the final invoice was within the statute of limitations);......
-
Nooe v. State, 5D03-2658.
...could be combined to reach the $100,000 threshold, even if multiple victims are involved. The defendant relies on State v. Diaz, 814 So.2d 466 (Fla. 3d DCA 2002), in arguing that the annual contracts between the Center and the Department, whereby grants were disbursed to the Center, were se......
-
State v. Dominguez
...previously determined that each submission of fraudulent documents for payment is chargeable as a separate violation. State v. Diaz, 814 So.2d 466, 467 (Fla. 3d DCA 2002) (as to grand theft, "[t]he statute is silent on the issue of continuing offenses, with no suggestion that the legislatur......
-
Nooe v. State, SC05-514.
...Florida Constitution. Upon further consideration, we have determined that jurisdiction was improvidently granted because State v. Diaz, 814 So.2d 466 (Fla. 3d DCA 2002), was decided on the issue of the statute of limitations pursuant to section 812.035(10), Florida Statutes (1995), and the ......