JOHN H. CAPIRO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2012-09-12
No. 4D11-331
MAY, C.J., and TUTER, JACK, Associate Judge, concur.
97 So. 3d 298 Florida District Court of Appeal, Fourth District (2012) Caution
Cited by 8 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

John Capiro was convicted of grand theft over $100,000 for spending loan proceeds from his business partners on personal expenses. The Fourth District Court of Appeal reversed and remanded for a new trial, finding that trial counsel's failure to request a good faith defense jury instruction constituted ineffective assistance of counsel where the good faith belief defense was central to Capiro's case.


Holding

The court held that counsel's performance was deficient because the good faith defense was central to Capiro's case and counsel failed to request the applicable jury instruction. The court further held that Capiro was prejudiced because the jury was not instructed on the law applicable to his only defense. The ineffectiveness was apparent on the face of the record, making it cognizable on direct appeal despite the general rule that such claims are reserved for post-conviction relief.


Headnotes

[1] A good faith belief in one's right to possession of property is a defense to the charge of theft.

[2] A defendant is entitled to a jury instruction on a "good faith" defense if there is any evidence to support it.

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Key Quotes

“a good faith belief in one's right to possession of property is a defense to the charge of theft”

Establishes the legal principle that Capiro's good faith belief defense was valid under Florida law

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Facts & Procedural History

In 2006, Capiro started a commercial mortgage lending business and two friends loaned him $250,000 to help satisfy licensing requirements. The loan do…

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Opinion of the Court
DAMOORGIAN, J.

DAMOORGIAN, J.

John Capiro appeals his conviction and sentence for grand theft over $100,000, raising a number of issues. We find merit to his claim of ineffective assistance of counsel and reverse only as to that issue.1

Capiro’s conviction was the result of a business deal gone wrong. In 2006, Capi-ro started a commercial mortgage lending company. Two of Capiro’s friends (the “victims”) expressed an interest in Capi-ro’s business. Capiro agreed to make the victims part owners in the business, and the victims in turn loaned Capiro $250,000. Capiro and the victims, without the assistance of counsel, memorialized their agreement in two documents: a Business Agreement and a Promissory Note.

The structure of the $250,000 loan is somewhat ambiguous. The Business Agreement did not make any reference to the loan or otherwise dictate how the loan was to be used, and the Promissory Note indicated that the loan was being made to Capiro and his wife in their individual capacity. The terms of payment outlined in the Promissory Note dictated that Capiro was to make monthly “interest only” payments with a return of the principal in three years. It did not outline any restrictions on Capiro’s use of the loan funds. However, an addendum to the Promissory Note suggested that the loan was made to the business so that it could qualify for a commercial lending license.2 Moreover, one of the victims testified that the loan *300was made only to satisfy the licensing requirements for the lending business, and Capiro understood that he was not entitled to spend the principal for personal uses.

Capiro ran into financial problems shortly after he formed the lending business. He continued to make the required monthly “interest only” payments on the loan but, unbeknownst to the victims, he began using the principal to pay for his personal expenses. Soon thereafter, he spent all of the loan proceeds and was no longer able to make the required monthly interest payments. After Capiro informed the victims that he had spent all of the money and would not be able to pay it back, the victims sued Capiro. They also contacted the sheriffs office, and Capiro was charged with grand theft over $100,000.

At trial, Capiro admitted that he borrowed, spent, and did not pay back the loan funds. However, he testified that he believed he was entitled to spend the funds on personal expenses because the loan was a personal loan as evidenced by the fact that the note was signed by Capiro and his wife in their individual capacities without any restriction on use. In essence, Capi-ro’s entire defense was that he did not have the requisite intent to commit theft because he spent the funds under the good faith belief that he was allowed to do so.

Florida recognizes that “a good faith belief in one’s right to possession of property is a defense to the charge of theft.” Alfaro v. State, 837 So.2d 429, 432 (Fla. 4th DCA 2002) (citing Rodriguez v. State, 396 So.2d 798, 799 (Fla. 3d DCA 1981)). Further, a defendant is entitled to instruct the jury on a “good faith” defense if there is any evidence to support the defense. See e.g., Verdult v. State, 645 So.2d 530 (Fla. 4th DCA 1994) (court erred in disallowing theft defendant’s requested good faith defense jury instruction because contract between defendant and victims constituted evidence that defendant had a good faith belief that he was entitled to property in question). Although Capiro’s counsel touched on the good faith defense in his opening and closing arguments, he ultimately failed to request a good faith defense jury instruction. Capiro argues that this constituted ineffective assistance of counsel.

To succeed on an ineffective assistance of counsel claim, a defendant must satisfy the following elements: 1) counsel’s performance was deficient to the point that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment, and 2) the deficient performance prejudiced the defense. Aversano v. State, 966 So.2d 493, 494-95 (Fla. 4th DCA 2007) (citing Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Ineffective assistance of counsel claims are usually reserved for post-conviction relief, and can be addressed on direct appeal only “where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious.” McMullen v. State, 876 So.2d 589, 590 (Fla. 5th DCA 2004).

Capiro acknowledges that ineffective assistance of counsel claims are generally not cognizable on direct appeal, but maintains that his counsel’s ineffectiveness is apparent on the face of the record. We agree.

We find our holding in Aversano disposi-tive of the issue before us. 966 So.2d at 496-97. There, defense counsel failed to request a good faith defense jury instruction at the trial of a grand theft defendant who admitted to selling property belonging to a third party, but argued that she did so because her attorney told her she could. Id. at 495. We held that it was apparent on the face of the record that defense *301counsel’s performance was deficient because the good faith defense was central to the defendant’s case, and that the defendant was prejudiced since she was essentially deprived of her only defense. Id.

Here, Capiro’s entire defense at trial was that he thought he was allowed to spend the funds in large part because he and his wife signed the Promissory Note in their individual capacities. Based on our holding in Aver sano, it is apparent on the face of the record that Capiro’s defense counsel was ineffective because he failed to request that the jury be instructed on a defense central to Capiro’s case. We further hold that Capiro was prejudiced by virtue of the fact that the jury was not presented with an instruction on the law applicable to his only defense.

Accordingly, we reverse and remand for a new trial. We affirm as to the trial court’s rulings on the remaining issues raised by Capiro without further comment.

Reversed and Remanded.

MAY, C.J., and TUTER, JACK, Associate Judge, concur.


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Citator

Cited By

  • Elliott Barnett v. State, 181 So. 3d 534 (Fla. 1st DCA 2015)
    …indisputable prejudice, and an inconceivable tactical explanation for the conduct.” Morales v. State, 170 So. 3d 63, 67 (Fla. 1st DCA 2015). Barnett relies on the decisions in Shedd v. State, 137 So. 3d 456 (Fla. 4th DCA 2014), and Capiro v. State, 97 So. 3d 298 (Fla. 4th DCA 2012), to support his argument that counsel’s failure to request an alibi instruction constitutes ineffective assistance of counsel on the face of record because the alibi defense was Barnett’s primary defense. However, we find that Sh…
  • Kruse v. State, 222 So. 3d 13 (Fla. 4th DCA 2017)
    …onfidence in the outcome is undermined. Jones, 137 So. 3d at 449 (quoting Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (citing Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984))); see also Capiro v. State, 97 So. 3d 298, 300 (Fla. 4th DCA 2012) (describing the two elements as “1) counsel’s performance was deficient to the point that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment, and 2) the deficient performance prejudiced the defens…
  • McKELIVER v. State, 137 So. 3d 550 (Fla. 4th DCA 2014)
    …PER CURIAM. Affirmed. See Capiro v. State, 97 So. 3d 298, 300 (Fla. 4th DCA 2012) (observing that “[ijneffective assistance of counsel claims are usually reserved for postconviction relief, and can be addressed on direct appeal only ‘where the incompetence and ineffectiveness of counsel is apparent on the…

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