State v. Stenza

• Decision Date: 20 July 1984
• Docket Number: No. 83-1821,83-1821
• Citation: 453 So.2d 169
• Parties: STATE of Florida, Appellant, v. Charles STENZA, Appellee.
• Court: Florida District Court of Appeals

Page 169

453 So.2d 169

STATE of Florida, Appellant, v. Charles STENZA, Appellee.

No. 83-1821.

District Court of Appeal of Florida Second District.

July 20, 1984.

Jim Smith, Atty. Gen., Tallahassee, and Gary O. Welch, Asst. Atty. Gen., Tampa, for appellant.

Fred S. Pflaum and Mark Louis Katzman, Sarasota, for appellee.

CAMPBELL, Judge.

Appellant, State of Florida, appeals the trial court's granting of appellee's motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). We affirm.

Appellee was charged by information with grand theft in violation of section 812.014(1), Florida Statutes (1981). The information alleged that appellee, on April 5, 1983, obtained:

[H]ousehold furnishings, including appliances, furniture, pictures, linens, dishes and a television set ... property of the Estate of Elizabeth O'Kelly, ... without the consent of the said owner or custodian and with the intent to deprive said owner or custodian of her rights to the property or benefit therefrom, or with the intent to appropriate the said property to his own use or to the use of another not entitled thereto....

Appellee is in the business of removing deceased persons from their homes and cleaning the homes. He is also engaged in the related enterprise of liquidation of estates. In this case, appellee was engaged to remove the body and clean the home of Mrs. O'Kelly. He performed those services and also arranged for the removal of Mrs. O'Kelly's home furnishings by Mid-County Auction Service, the sale of such property and payment of the funds received therefrom to Mrs. O'Kelly's heir.

In his affidavit, filed in support of and with his motion to dismiss, appellee stated as follows:

1. That the undersigned Affiant is the same CHARLES STENZA who is charged in case number 83-540F.

2. That pursuant to a contract with Manatee County the undersigned removed the body of one ELIZABETH O'KELLY from her residence located at 5050 5th Street East Bradenton, Florida.

3. At the time of the removal of the body the undersigned had conversations with PEGGY O'KELLY WHALEN and MICHAEL PATRICK O'KELLY who were the only heirs to the estate of ELIZABETH O'KELLY.

4. That the undersigned affiant [sic] received permission from the heirs to clean the residence.

5. That the undersigned honestly believed that at that time he had received permission from the heirs to make arrangements for the auction of all of the remaining estate of ELIZABETH O'KELLY.

6. That the Affiant contacted Mid-County Auction Service with whom Affiant had done business with in the past.

7. That Mid-County Auction came to the residence of ELIZABETH O'KELLY sometime in late March of 1983, and transported all of the estate of ELIZABETH O'KELLY to the Mid-County Auction Service where it was auctioned on April 2, 1983.

8. That a detailed inventory of said property was taken at the time of its removal from the ELEZABETH O'KELLY [sic] residence. (A copy of the Mid-County Auction Service inventory is attached hereto and marked as exhibit A.) 9. That at the time said property was removed from the ELIZABETH O'KELLY estate, the Affiant instructed RICH LITTLE who is the owner of Mid-County Auction Service to cut a check after the property was auctioned to PEGGY O'KELLY WHALEN.

10. That all property removed from the residence of ELIZABETH O'KELLY was sold at the Mid-County Auction Service because the Affiant believed he had the consent of the heirs to auction off the estate.

Appellee also filed in support of his motion, the affidavit of Richard Little, owner of Mid-County Auction Service, who stated as follows:

1. Affiant is the owner of Mid-County Auction Service.

2. That Affiant has in the past done business with one CHARLES STENZA.

3. That the Affiant was contacted by CHARLES STENZA sometime in March of 1983, at which time CHARLES STENZA informed the Affiant that he had permission to dispose of an estate through an auction.

4. That sometime in late March of 1983, the Affiant and his employees went to 5050 5th Street East Bradenton, Florida and removed the contents of said residence to the Mid-County Auction.

5. That at the time said property was removed the undersigned Affiant and his employees took a careful inventory of all the property that was removed.

6. That on April 2, 1983, the contents of the residence at 5050 5th Street East Bradenton, Florida were auctioned.

7. That the attached inventory from Mid-County Auction Service is an accurate reflection of the prices received for the items sold at the auction.

8. That at the time Mid-County Auction Service removed the property from the O'KELLY estate the Affiant was instructed by CHARLES STENZA to cut the check for the sale in the name of PEGGY O'KELLY WHALEN.

9. That a number of weeks later CHARLES STENZA again contacted the Affiant and again instructed the Affiant to cut the check in the name of PEGGY O'KELLY WHALEN.

10. That all the property removed from 5050 5th Street East Bradenton, Florida residence of ELIZABETH O'KELLY was sold at the Mid-County Auction Service.

Appellant, State of Florida, filed a demurrer to appellee's motion to dismiss, which was sworn to by an assistant state attorney, and stated only as follows:

1. That both heirs, Peggy O'Kelly Whalen and Michael Patrick O'Kelly, have signed sworn statements that they had no agreement with Mr. Stenza, and had never authorized Mr. Stenza to remove the items alleged in the information.

The trial court granted appellee's motion to dismiss. The crux of the state's case rests on whether it could prove a felonious intent on the part of appellee. It argued to the trial court only the case of Casso v. State, 182 So.2d 252 (Fla. 2d DCA 1966), and in its brief filed here, only State v. McCray, 387 So.2d 559 (Fla. 2d DCA 1980). Both Casso and McCray stand for the well-accepted principle of law that intent or state of mind is a jury question that, in most instances, cannot be ascertained by direct evidence, but can only be inferred and, therefore, is not proper to be determined on a motion to dismiss. We continue to adhere to that rule of law, but in doing so, observe that for nearly every rule there is an exception. In Casso, the court, while stating that existence of the requisite felonious intent is for a jury to determine, also cautioned that that rule was "subject always to the legal requirement that there must be some substantial competent evidence from which the jury may reasonably infer ... the intent...." 182 So.2d at 257. In this case, appellant relies upon the fact alleged in its demurrer that appellee had no permission to remove and sell Mrs. O'Kelly's property, to support an inference of his felonious intent to deprive Mrs. O'Kelly's heirs of the property or benefit thereof.

The demurrer does not refute appellee's statement that he believe...