State v. Mark Marks, P.A.
| Decision Date | 17 July 1997 |
| Docket Number | No. 85920,85920 |
| Citation | 698 So.2d 533 |
| Parties | 22 Fla. L. Weekly S439 STATE of Florida, Petitioner, v. MARK MARKS, P.A., et al., Respondents. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Attorney General and Richard L. Polin, Assistant Attorney General, Miami, for Petitioner.
Mark Hicks, of Hicks, Anderson & Blum, P.A., Miami, and H. Dohn Williams, Jr. of H. Dohn Williams, Jr., P.A., Fort Lauderdale, on behalf of Mark Marks; Archibald J. Thomas, III of Archibald J. Thomas, III, P.A., Jacksonville, on behalf of Gary Marks; J. David Bogenschutz of Bogenschutz & Dutko, P.A., Fort Lauderdale, on behalf of Ronald J. Centrone; and Ronald S. Guralnick of Ronald S. Guralnick, P.A., Miami, on behalf of Noreen Roberts and Denise Beloff, for Respondents.
Bill Nelson, Insurance Commissioner and Charles Faircloth, Jr., Senior Attorney, Tallahassee, for Amicus Curiae Department of Insurance.
Robert S. Glazier, Miami, for Amicus Curiae The Academy of Florida Trial Lawyers.
We have for review State v. Mark Marks, P.A., 654 So.2d 1184 (Fla. 4th DCA 1995), in which the district court certified the following question to be of great public importance:
WHETHER SECTION 817.234(1), FLORIDA STATUTES (1987), IS UNCONSTITUTIONALLY VAGUE AS APPLIED TO ATTORNEYS IN THE REPRESENTATION OF THEIR CLIENTS SINCE IT DOES NOT PROVIDE ADEQUATE NOTICE OF WHEN AN OMISSION WILL RESULT IN AN "INCOMPLETE" CLAIM UNDER THE STATUTE?
Id. at 1194. We have jurisdiction pursuant to article V, section 3(b)(4), of the Florida Constitution. We find that by using the term "incomplete," section 817.234(1), Florida Statutes (1987), does not provide sufficient notice of the conduct by attorneys that it proscribes and that it is subject to arbitrary enforcement when applied to attorneys in the representation of their clients. We therefore answer the certified question in the affirmative. 1
The State initiated this case by filing an information against a total of twelve defendants. The information was amended several times. The final amended information, dated August 21, 1992, charged only eight defendants. 2 The defendants included the firm Mark Marks, P.A., three attorneys in the firm, 3 three employees of the firm, 4 and a doctor who conducted medical examinations of several of the firm's third party insurance claim clients. 5 The counts in the information were as follows:
In summary, the information charged the eight defendants with engaging in various illegal activities including but not limited to:
-Preparation and submission of false and fraudulent medical tests and procedures for the purpose of enhancing the settlement value of insurance claims;
-Soliciting clients to undergo unnecessary and dangerous medical tests and procedures for the purpose of enhancing the settlement value of insurance claims;
-Altering, forging and concealing medical reports, medical test results and medical bills to enhance the settlement value of insurance claims;
-Subornation of false, fraudulent and perjured testimony by clients and other witnesses regarding material matters in order to enhance the settlement value of insurance claims; and
-Theft of monies from various insurance companies by means of the foregoing acts.
In January of 1993, the State filed a second information against four of the same defendants. 8 The illegal activities alleged in the information were similar to those alleged in the first information. The counts alleged in that complaint were as follows:
A large number of the counts in both informations were based on the attorneys' actions in representing various clients in insurance claims during pre-suit settlement negotiations. The State alleged that the attorneys' actions violated the false and fraudulent insurance claim statute, section 817.234(1) 9 and (3), 10 Florida Statutes (1987). We are concerned here with the counts charging violations of section 817.234, along with the grand theft counts based upon the alleged violations of section 817.234.
Early in the proceedings, the defendants filed a number of motions challenging section 817.234 and the counts in the first information that were based upon that statute. The trial court denied the motions. Following the disqualification of the judge who ruled on these motions, the defendants filed several motions to reconsider the prior judge's rulings. In two orders dated October 14, 1993, the trial court reconsidered the defendants' claims regarding section 817.234. The first order addressed the counts raised in the first information. The trial court determined that the structure of section 817.234 as well as the insurance code, particularly section 627.4136, Florida Statutes (1993), 11 indicated that section 817.234 did not apply to third-party insureds or their attorneys. Accordingly, the trial court dismissed counts 15, 18, 19, 22, 23, 29, 30, 31, 32, 33, 34 and 35, as well as the predicate acts of count 1 which coincided with these counts, because they all pertained to third-party claims. 12
In the second order, which addressed the counts raised in the second information, the court adopted the findings and conclusions of its initial order and dismissed all counts based on third-party claims. The counts dismissed from the second information were counts 1, 2, 3, 5, 7, 8, 9, 10, and 11.
Prior to the trial court's orders dismissing these counts, the defendants filed several motions to dismiss various counts in the first information in which the defendants were charged with violating section 817.234(1) by submitting incomplete demand letters to insurers. According to the State, the defendants' demand letters omitted medical records or statements that were unfavorable to the claim. The trial court, in a third order dated January 27, 1994, addressed the defendants' motions to dismiss, but its findings only applied to count 21 13 and count 20 14 of the first information, as well as the corresponding predicate acts associated with those counts. 15 The trial court did not directly address the remaining counts the defendants challenged in these motions because they pertained to third-party claims and thus already had been dismissed by the court's prior order.
In this third order, the trial court first addressed and rejected the defendants' claim that section 817.234 was unconstitutionally vague because it conflicted with section 627.736(7)(b), Florida Statutes (1987), the personal injury protection benefits statute. The trial court thereafter addressed the defendants' claim that section 817.234 was unconstitutionally vague because, in using the term "incomplete," it failed to warn attorneys filing insurance claims on behalf of their clients that omitting unfavorable medical reports in a pre-suit demand statement could violate the statute. The trial court agreed. The court found that as applied to attorneys representing their clients, the statute failed to provide sufficient notice and was susceptible to arbitrary enforcement. Moreover, the trial court rejected the State's claim that the scienter language saved the statute from challenges of unconstitutional vagueness. Accordingly, the trial court dismissed counts 20 and 21, as well as the corresponding predicate acts.
On appeal, the district court consolidated the cases arising from the three orders as they all involved the question of whether section 817.234(1) was unconstitutionally vague as applied to attorneys in the representation of their clients. Marks, 654 So.2d at 1185. The district court answered that question affirmatively because it concluded section 817.234(1) did not provide adequate notice as to when omissions by the attorney would result in an "incomplete" claim. Id. at 1190. The district court further held that the legislature intended both subsection (1) and subsection (3) of section 817.234 to apply to third-party claims. Id. at 1190-93. Based on its findings, the district court reversed the trial court's orders of dismissal and remanded with direction to reinstate all of the counts and predicate acts except those which were totally and exclusively dependent upon alleged incomplete statements tendered by the attorneys in the representation of their clients. Id. at 1187. On the State's motion forRehearing/certification the district court certified the question above as one of great public importance. Id. at 1193-94.
We first address the question certified by the district court. While the issue of whether the term "incomplete" renders section 817.234(1) unconstitutionally vague is only expressly addressed in the trial court's third order, the issue is also relevant to a number of counts which the trial court dismissed in its first two orders. Specifically, the issue is relevant to those counts dismissed in the first two orders which, like counts 20 and 21 in the first information, were based on the attorneys' alleged conduct of filing incomplete claims. Our resolution of the certified question therefore will impact certain counts dismissed in all three of the trial court's orders.
In order for a criminal statute like section 817.234(1) to withstand a void-for-vagueness challenge the language of the statute must provide adequate notice of the conduct it prohibits when measured by common understanding and practice. See Brown v. State, 629 So.2d 841, 842 (...
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