The First District Court of Appeal on February 12, 2009 issued a very interesting opinion in State v. Jones, First District Case No. 1D07-0972.
In the Jones case, the appellant appealed a judgment and sentence after a jury convicted her of grand theft of between $10,000 and $20,000 and contracting without a general contractor’s license during a state of emergency. The conviction for contracting without a general contractor’s license during a state of emergency was affirmed.
The interesting portion of this decision from a criminal defense and professional licensure perspective was detailed in the First District’s analysis of why it overturned the appellant’s conviction for grand theft. The First District stated that the record demonstrated that the State’s grand theft case appeared to be based upon the claim that the appellant committed fraud when she entered into the general contractor’s agreement because she “tricked” the victim by “false pretenses” therefore “she got every penny in this case by false pretenses and that’s what the State submits to you she is guilty of a $10,000 to $20,000 range.”
The court went on to state that “in between this quantum leap from the assertion to conclusion", the record indicates that the State simply failed to prove beyond a reasonable doubt that the appellant did commit grand theft and misappropriate any particular amount of funds.”
The court indicated that although the State put into evidence the amount of insurance checks that had been distributed that the Court, upon its review of the record, found that the State failed to demonstrate where the funds went to pay fees and costs for items such as equipment and labor, or the appellant has somehow illegally pocketed any remaining funds.
Moreover, the State admitted that the appellant had completed reconstruction of the victim’s roof for which she received an agreed upon $6,000 fee. As a result, there was simply nothing in the record that indicated to the jury that there were any specific funds that the appellant had allegedly stole.
The First District found that the State’s conclusion, was misplaced, that the appellant committed grand theft because she committed fraud when she entered into the general contractor’s agreement and because the job was never completed was in itself enough to establish grand theft.
It is also important to note that the prosecutor argued in the case that the appellant may have had good intentions when she entered into the contract, but that she was basically incompetent in her work. The First District went out of its way to state that mere incompetence does not support a contention that the appellant possessed the intent to deprive the victim of insurance proceeds thus establishing a case of grand theft. As a result, the First District has provided a road map of the specific types of evidence necessary to sustain a conviction for grand theft against an unlicensed or licensed general contractor.
The author, Brett Hastings, practices in both the areas of criminal defense and professional licensure defense. Brett Hastings routinely represents general contractors who have been charged with crimes or administrative violations by the State of Florida. Brett Hastings has handled successfully a number of misapplication of construction funds cases prosecuted against contractors in the Duval and Nassau county areas.
The First DCA Decision can be found here:
http://opinions.1dca.org/written/opinions2009/02-12-2009/07-0972.pdf
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