State v. Parrish
| Decision Date | 30 August 1990 |
| Docket Number | No. 89-1508,89-1508 |
| Citation | 567 So.2d 461 |
| Parties | 15 Fla. L. Weekly D2165 STATE of Florida, Appellant, v. Patricia PARRISH and Jacqueline Paige Parrish, Appellees. |
| Court | Florida District Court of Appeals |
Rehearing Denied Jan. 2, 1991.
Robert A. Butterworth, Atty. Gen., Mitchell D. Franks, Deputy Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellant.
Alan C. Sundberg, Gary L. Sasso, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tallahassee, Edward S. Stafman, of Stafman & Friedlander, Tallahassee, for appellees.
The state appeals an order of the trial court which dismissed an information filed against Patricia Parrish and Jacqueline Paige Parrish. The information charged the Parrishes with making false statements on homestead exemption applications, and with grand theft in connection with taxes alleged to be due on property determined ineligible for homestead exemption. The state contends the order of dismissal errs in four respects: (1) in imputing the property appraiser's motives to the prosecutor, (2) in determining that the referral for prosecution was improperly motivated, (3) in determining that the Parrishes were prosecuted when similarly situated persons were not, and (4) in determining that the Parrishes were improperly selected for prosecution. We affirm.
Charges were filed in this case contemporaneously with a 1988 political campaign in which appellee Patricia Parrish was the Democratic candidate for the office of Leon County Property Appraiser, against the incumbent Republican C.C. "Dick" Brand. The trial court found that public opinion polls conducted in the early part of October 1988 indicated that the race would be close. The record reflects that during the campaign, based on information furnished by a subordinate in his office, Brand concluded that Patricia Parrish and her daughter, Paige Parrish, had violated the homestead exemption laws. On the basis of this conclusion, Brand arranged a meeting with Willie Meggs, State Attorney for the Second Judicial Circuit. Meggs decided to investigate, and turned the matter over to his chief investigator who, in turn, assigned an investigator to the case.
On October 19, 1988, two days after the meeting in the state attorney's office, the investigator presented his findings to Meggs. That same day, Meggs decided to seek arrest warrants. The probable cause affidavits prepared to support issuance of the arrest warrants indicate the investigation was conducted upon the sworn complaint filed by the office of the Leon County Property Appraiser. The warrants were obtained, and the Parrishes were arrested and booked at the Leon County jail on misdemeanor charges of making false statements on their homestead exemption form.
After the prosecution commenced, the state attorney offered a plea agreement in which the state agreed to drop the charges against Paige Parrish, provided Patricia Parrish pled nolo contendere to one count of making a false statement on a homestead exemption form and paid a $250 fine. Patricia Parrish declined the plea offer. Thereafter, the state attorney filed an amended information charging the Parrishes with the felony offense of grand theft, in addition to the original false statement charges. The grand theft charge was based on the accumulation of lost tax revenues for the years in which the Parrishes allegedly filed false homestead exemption claims. With the added felony count, the case was transferred from county court to circuit court.
The false homestead exemption allegations relate to two townhouses purchased in August 1983 by Lance and Paige Parrish, with their parents as half owners. The Parrish children then became fulltime occupants of their respective units. On February 14 and 15, 1984, the Parrish children made application for and were granted fifty percent homestead exemptions, based upon their fifty percent interest in their homes. In 1985, Patricia Parrish signed the renewal forms for her children; in 1986, Patricia Parrish signed the renewal card for Paige's unit, and Lance signed the renewal card for his unit; in 1987, Patricia Parrish signed the renewal card for both units; in 1988, Patricia Parrish signed the renewal form for Lance's unit, and Paige signed the renewal form for her unit. Each renewal application sought only to renew the children's fifty percent exemptions.
The matter came to the attention of the property appraiser's office when Lance Parrish sold his townhouse in 1988, shortly before Patricia Parrish commenced her campaign against Brand. A copy of the deed was transmitted to the property appraiser's office for correction of the records to reflect the new owner's name, and for deletion of homestead exemption status. The new owner of property entitled to homestead exemption must claim the exemption in his or her own name, to have homestead status reinstated. See § 196.031(1), Fla.Stat. (1987). Upon receipt of the conveyance of Lance Parrish's townhouse, the employee responsible for correcting the property appraiser's records noted that it was owned by Lance, Patricia, and Bernard Parrish. Because Patricia Parrish was one of the owners, and because the employee knew Patricia Parrish did not live at the property, the record reflects she reported the matter to the deputy property appraiser. In so doing, the employee by-passed the normal office procedure, in which she would have taken questions to her immediate supervisor rather than to the deputy supervisor, Brand's second in command. The deputy property appraiser reviewed computer information on the property, and then began an investigation of the Parrishes. 1
The investigation conducted by the property appraiser's office revealed that although homestead renewal applications were filed on Lance Parrish's townhouse for the years 1986 through 1988, Lance Parrish moved out of the townhouse in June 1986; thereafter, the property was rented. The investigation further revealed that although Paige Parrish continued to claim a fifty percent homestead exemption, she moved out of her townhouse in August 1985, and this property was rented also. The property appraiser's office completed its investigation of the Parrishes in two to three working days, and then turned the matter over to the state attorney's office.
Initially, the state attorney was given the impression that Patricia Parrish had claimed three homestead exemptions for herself. Subsequently, however, the property appraiser maintained the exemptions were claimed improperly because the property had been rented. Section 196.061, Florida Statutes, 2 generally known as the "rental abandonment statute," provides that rental of property formerly claimed as homestead constitutes an abandonment of the homestead exemption. Brand acknowledged that the statute is not well known, and indeed the record reflects that after this case was filed, the property appraiser's office instituted proceedings to acquaint property owners with this provision of the homestead exemption law.
It is undisputed that until charges were filed against the Parrishes, no one in Leon County had been charged with a violation of section 196.131(2), Florida Statutes, 3 or with grand theft related to a charge of providing false information on a homestead exemption form. The record reflects the state attorney was cognizant of this historical fact, and also was aware of the political race between Patricia Parrish and Brand. Nevertheless, the record also reflects he did not inquire into the reasons the Parrishes were being referred for prosecution when no other persons had been so referred.
The record further reflects that the investigation undertaken by the state attorney's office was completed in twenty-eight hours. An attorney employed by the property appraiser's office was assigned to assist the state attorney's office in the investigation. The Parrishes were arrested on October 19, 1988, two days after Brand's meeting with the state attorney, and less than three weeks before the general election on November 8, 1988. No one in the state attorney's office spoke with the Parrishes prior to the arrest, although the state attorney acknowledged that sometimes suspects are contacted to ascertain their version of a matter before an arrest is made. When asked why he decided to arrest in this case, rather than serve the summons or notice to appear normally employed with regard to misdemeanors, Meggs said that he considered the severity of the situation warranted a determination by a neutral magistrate.
The record also reflects that the state attorney's office has a policy of reacting to complaints filed by other agencies, rather than initiating prosecutions. Meggs stated that his charging decisions are based on the reasonable likelihood of obtaining a conviction.
In November 1988, the Parrishes filed a motion to dismiss, alleging, among other things, that the decision to prosecute constituted a violation of their equal protection and due process rights under the federal and state constitutions. On April 10, 1989, the Parrishes filed a second motion to dismiss predicated upon allegations of selective prosecution in violation of the due process clause. After a hearing to determine whether the Parrishes were entitled to an evidentiary hearing on their selective prosecution claim, the trial court issued an order finding that they had established a "colorable entitlement" to raise the defense of selective prosecution, and were entitled to an evidentiary hearing on this claim.
Following the subsequent evidentiary hearing which extended over three days and involved eighteen witnesses, together with numerous exhibits, the trial court found that appellees established the elements of their selective prosecution defense. The state concedes that the trial court recited the appropriate standard for determining selective prosecution claims, but maintains the trial court misinterpreted...
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