STATE OF FLORIDA, APPELLANT/CROSS-APPELLEE,
v.
PETER SANTO, PETER PAPLEY, JOHN STOVER, AND ANTHONY SCHULTZ, APPELLEES/CROSS-APPELLANTS,
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The State of Florida appealed the dismissal of eight grand theft counts against air conditioning company owners and employees who allegedly deceived customers about the need for air conditioning repairs. The court reversed the dismissal, holding that the "endeavor" theory of grand theft under Florida law does not require an actual completed purchase, only overt acts demonstrating an attempt to obtain another's property with requisite intent.
Yes. The Florida grand theft statute's inclusion of "endeavors to obtain or use" property establishes that a completed theft can be proven through an attempt accompanied by requisite intent, and an actual purchase is not necessary. The facts alleged—deceptive representations about unit conditions, evidence of tampering, and encouragement to sabotage units—constitute sufficient overt acts to support grand theft charges under the endeavor theory.
[1] An "endeavor" theory of grand theft can be proven by evidence of an attempt to obtain or use property, coupled with the requisite intent, even if the theft is not complet…
[2] To prove an attempt to commit grand theft, the state must establish an overt act that constitutes an appreciable fragment of the crime, which would have been consummated…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit therefrom.”
The statutory language at the heart of the case, establishing that grand theft can be committed through an attempt or endeavor, not just completed appropriation.
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Join FLexlaw to unlock all legal intelligenceAppellees Santo, Papley, Stover, and Schultz were owners and/or employees of Air Control Systems Southwest, an air conditioning sales and duct cleanin…
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[*140] PATTERSON, Judge.
The state appeals from the trial court’s dismissal of eight grand theft counts against appellees Peter Santo, Peter Papley, John Stover, and Anthony Schultz. The appellees filed a cross-appeal from the denial of their motion to dismiss the remaining two grand theft counts. We reverse the dismissal of the eight grand theft counts because the facts are sufficient to allege an “endeavor” theory of grand theft. As to the cross-appeal, we affirm the denial of the motion to dismiss the two remaining counts of grand theft.
The appellees were owners and/or employees of Air Control Systems Southwest (Air Control), which engaged in the sale of air conditioning units and duct cleaning services. The state charged the appellees with grand theft as a result of deceptive practices Air Control technicians employed in home solicitations. Stover filed a motion to dismiss which the other appellees adopted. The allegations show that Air Control technicians represented that the victims’ air conditioning units needed cleaning or replacement and that failure to do so could be a health hazard. In the eight-dismissed counts, the victims refused to make the purchases after receiving second opinions that their units were in working order and, in some cases, showed evidence of tampering. The motion to dismiss admits that a former employee of Air Control told police that Stover encouraged them “to sabotage units in an effort to gather sales.” The state’s traverse did not deny the facts in the motion to dismiss, but asserted that the state would establish additional facts relating to the practice of sabotaging air conditioning units to make sales.
The state charged the appellees with grand theft under section 812.014, Florida Statutes (1993), which provides in pertinent part:
(1) A person commits theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit therefrom.
(b) Appropriate the property to his own use or to the use of any person not entitled thereto.
Because the statute includes the phrase “or endeavors to obtain or to use,” the state proves a completed theft “when an attempt, along with the requisite intent, is established.” State v. Sykes, 434 So. 2d 325, 327 (Fla.1983). An attempt requires an overt act: “There must be some appreciable fragment of the crime committed and it must be in such progress that it would be consummated unless interrupted by circumstances independent of the will of the attempter.” Robinson v. State, 263 So. 2d 595, 597 (Fla. 3d DCA 1972) (defendant’s conversation with police officer to buy stolen property did not amount to required overt act for attempted grand larceny because defendant ended conversation before accomplishment of desired result).
At the hearing on the motion to dismiss, the trial court focused on the fact that the victims in the eight counts at issue did not actually purchase goods or services. Evidence of an actual purchase, however, is not necessary to prove that the appellees endeavored to obtain or use the property of another. See McMillian v. State, 566 So. 2d 291 (Fla. 1st DCA 1990) (defendant convicted of grand theft when he committed overt acts of posing as naive wealthy person to trick victim into withdrawing $4,000 from bank, even though victim never withdrew money). The information and the supporting facts are sufficient to allow the eight grand theft counts to go to trial. Thus, we reverse the trial court’s dismissal of the eight grand theft counts.
As to the cross-appeal, we affirm the denial of the motion to dismiss the remaining two grand theft counts in which the victims actually purchased goods and services.
Affirmed in part and reversed in part.
DANAHY, A.C.J., and LAZZARA, J., concur.
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Colletti v. State, 74 So. 3d 497 (Fla. 2d DCA 2011)…eft is fully proved by showing that defendant endeavored to steal; there is no separate crime of attempted theft). The trial court agreed with the State that the endeavor theory was sufficient to prove the amount of the theft, citing State v. Santo, 693 So. 2d 139 (Fla. 2d DCA 1997). But Santo did not involve an attempt to prove value under the endeavor theory. In that case, the defendants were charged with multiple counts of grand theft based on their false representations to homeowners that their air condi…
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Profit v. State (Fla. 1st DCA 2024)
Authorities Cited
- State v. Sykes, 434 So. 2d 325 (Fla. 1983)
- Alphonso Clarence Robinson v. State, 263 So. 2d 595 (Fla. 3d DCA 1972)
- McMILLIAN v. State, 566 So. 2d 291 (Fla. 1st DCA 1990)