THE STATE OF FLORIDA, APPELLANT,
v.
PHILLIP GENE GRABARNICK, APPELLEE
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The State of Florida appealed a trial court's order dismissing a charge under Florida's Schemes to Defraud statute (Section 817.035(2), (3)) on constitutional grounds. The appellate court upheld the statute as constitutional and reversed the dismissal, finding no facial vagueness, sufficient notice of unlawful conduct, and a rational basis for the misdemeanor/felony classification scheme.
Section 817.035(2), (3) is constitutional. The statute is not facially vague and provides sufficient warning to potential violators; the phrase 'systematic ongoing course of conduct' does not create additional vagueness concerns; and the misdemeanor/felony classification based on the number of people affected, rather than the amount of property involved, is rationally related to the dimensions of the fraudulent scheme and does not violate the Constitution.
[1] A statute prohibiting schemes to defraud is constitutional if it provides sufficient warning to potential actors that their conduct will be considered unlawful.
[2] The phrase "systematic ongoing course of conduct" in a criminal statute is not unconstitutionally vague, as it sufficiently alerts individuals that continuous unlawful co…
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Join FLexlaw to unlock all legal intelligence“The statute in question carries a sufficient warning for potential actors to realize their conduct will be considered unlawful.”
Establishes that the statute satisfies the vagueness requirement by providing fair notice to potential violators
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Join FLexlaw to unlock all legal intelligencePhillip Gene Grabarnick was charged with violating Florida's Schemes to Defraud statute in count four of an information. The trial court granted Graba…
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PER CURIAM.
Appellant, the State of Florida, appeals an order of the trial court granting Phillip Grabarnick’s motion to dismiss count four of an information filed against Phillip Gra-bamick by holding that Section 817.035(2), (3), Florida Statutes (1977) is unconstitutional. We conclude the Florida Schemes to Defraud statute to be constitutional and, accordingly, reverse.
Section 817.035(2), (3) bears a remarkable similarity to 18 U.S.C.A. 1341 (federal mail fraud statute) and is virtually identical to §§ 190.60 and 190.65 of the New York Penal Law. The purpose and thrust of this statute was to codify an offense encompassing ongoing schemes to defraud. We deal first with the vagueness issue and conclude that § 817.035(2), (3) is not facially vague. The statute in question carries a sufficient warning for potential actors to realize their conduct will be considered unlawful. State v. Lindsay, 284 So. 2d 377 (Fla.1973). No further detail or specification is necessary. Griffin v. State, 396 So. 2d 152 (Fla.1981); Bell v. State, 289 So. 2d 388 (Fla.1973).
The next contention is that even if § 817.035(2), (3) were not facially vague, the term “systematic ongoing course of conduct” operates to create a constitutional ambiguity requiring a separate examination for vagueness. We analogize “systematic ongoing course of conduct” with “continuing criminal enterprise” and conclude that one is sufficiently put on notice that the law will punish more harshly where the unlawful conduct is continuous rather than a single act. United States v. Cravero, 545 F. 2d 406 (5th Cir. 1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977); United States v. Feinberg, 535 F. 2d 1004 (7th Cir. 1976); United States v. Kirk, 534 F. 2d 1262 (8th Cir. 1976); United States v. Collier, 493 F. 2d 327 (6th Cir. 1974); United States v. Manfredi, 488 F. 2d 588 (2d Cir. 1973).
Finally, it is argued that the misdemeanor/felony classification scheme found in § 817.035(2), (3) is invalid because the statute irrationally focuses upon the number of people affected rather than the amount of the property involved. We find no constitutional infirmity in the statutory scheme. It is the number of people involved that is directly related to the dimensions of the fraudulent scheme and the ultimate penalty. People v. Ford, 103 Misc.2d 249, 425 N.Y.S.2d 739 (1980), Additional Commentary to N.Y. Penal Law § 190.60, McKinney’s at 97.
Accordingly, we reverse the order of the trial court finding 817.035(2), (3) unconstitutional and remand for further proceedings consistent with the views expressed herein.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- United States v. Cravero, 545 F.2d 406 (5th Cir. 1976)
- United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976)
- United States v. Manfredi, 488 F.2d 588 (2d Cir. 1973)
- Mansfield v. Small Claims Court, 430 U.S. 983 (U.S. 1977)
- Umentum v. United States, 430 U.S. 983 (U.S. 1977)
- Bell v. State, 289 So. 2d 388 (Fla. 1973)
- United States v. Feinberg, 535 F.2d 1004 (7th Cir. 1976)
- State v. Lindsay, 284 So. 2d 377 (Fla. 1973)
- Griffin v. State, 396 So. 2d 152 (Fla. 1981)
- United States v. Collier, 493 F.2d 327 (6th Cir. 1974)