JOHN DOUGLAS MCCONNELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Douglas McConnell was convicted of third-degree felony forgery under Florida's general forgery statute for forging a credit card sales slip. The court affirmed his conviction and five-year sentence, holding that the state has prosecutorial discretion to charge credit card forgery under either the general forgery statute or the State Credit Card Crime Act, and that the applicable sentence is determined by the statute under which prosecution is maintained.
The appellant was properly sentenced under the general forgery statute to the term prescribed for a third-degree felony. The state has prosecutorial discretion to charge credit card forgery under either the general forgery statute or the State Credit Card Crime Act, and the applicable sentence is determined by whichever statute is used for prosecution, not limited by the penalties in the alternative statute.
[1] A prosecution for forgery of a credit card sales slip may be brought under general forgery statutes, even if the conduct also violates a specific credit card crime act.
[2] The State Credit Card Crime Act does not preclude the application of other criminal laws unless those laws are inconsistent with the Act.
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“Both relate to forgery and both encompass forgery of a credit card. The mere fact that the general forgery statute embraced in Ch. 831 is broader than the credit card statute embraced in Ch. 817 is no reason for denying a clear field of operation to either, at the election of the State.”
Establishes that both statutes may apply to credit card forgery and the state has prosecutorial discretion to choose which statute to use.
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Join FLexlaw to unlock all legal intelligenceMcConnell was convicted of forging a signature on a credit card sales slip in the amount of $62.80 at a filling station, whereby he received goods and…
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GRIMES, Judge.
Appellant was convicted of a third degree felony under § 831.01, F.S.A., and sentenced to five years. The conduct for which he was convicted involved the forging of a signature on a credit card sales slip in th.e amount of $62.80, whereby he received goods and services from a filling station. Appellant’s primary contention is that his sentence should have been limited to that which is prescribed for a first degree misdemeanor, since this would have been the maximum he could have received if he had been convicted under the applicable provision of the State Credit Card Crime Act, to wit: § 817.61, F.S.A. In State v. McCurdy, Fla.App.2d, 1972, 257 So. 2d 92, the defendant was charged with forging credit card charge slips under the general forgery statutes (Chapter 831, F.S.A.). The informations were quashed on the ground that the State Credit Card Crime Act governed all unlawful use of credit cards and that a forgery in connection with the use of a credit card must be prosecuted under that Act. This court reversed and said:
“However, we see nothing inconsistent between the two statutes. Both relate to forgery and both encompass forgery of a credit card. The mere fact that the general forgery statute embraced in Ch. 831 is broader than the credit card statute embraced in Ch. 817 is no reason for denying a clear field of operation to either, at the election of the State.”
The court also referred to § 817.68, F.S.A., which specifically provides that the State Credit Card Crime Act shall not be construed to preclude the applicability of any other provision of the criminal law of the state unless such provision is inconsistent with the terms of the Act.
However, in Lore v. State, Fla.App.4th, 1972, 267 So. 2d 699, our sister court held that a defendant who was charged and convicted under § 817.481, F.S.A. (a previous statute dealing with the unlawful use of credit cards), could not receive a greater sentence than he could have received under the applicable provision of the State Credit Card Crime Act. While upholding the conviction under the prior statute, the court held that its penalty provisions had been superseded by the penalty provisions of the later act. In Strada v. State, Fla.App.4th, 1972, 267 So. 2d 702, that court went a step further and held that where the conduct of a defendant convicted under § 831.01, F.S.A., constituted a violation of § 817.61, F.S.A., the defendant was entitled to be sentenced under the more lenient penal provisions of the latter statute.
We hold that appellant was properly sentenced for the commission of a third degree felony. Since the state has the right to prosecute under either statute, we see no reason why a sentence cannot be entered for a term prescribed by the statute under which the prosecution is maintained. We recognize that our holding appears to con flict with Strada, but, with all due respect, we believe the better rule is to permit the state to have the latitude of prosecutorial options. Cf. Edmond v. State, Fla.App.2d, 1973, 280 So. 2d 449. There is nothing in the general forgery statutes to suggest that their penalty provisions have been repealed by the State Credit Card Crime Act. Had the state perceived that this argument would be made, a conviction might have been obtained under the third degree felony provisions of § 817.61, F.S.A., because the evidence actually reflected a series of alleged credit card forgeries within a six months’ period totalling in excess of $100.-00.
The judgment and sentence are affirmed.
HOBSON, A. C. J., and BOARDMAN, J., concur.
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Fayerweather v. State, 332 So. 2d 21 (Fla. 1976)…Fourth District Court of Appeal’s decisions in Lore v. State, supra, and Strada v. State, supra. The Third District adopted the view of the Second District Court of Appeal in State v. McCurdy, 257 So. 2d 92 (Fla.App. 2d 1972) and McConnell v. State, 298 So. 2d 550 (Fla.App. 2d 1974). In Lore, the Fourth District Court of Appeal interpreted Section 817.68 of the Credit Card Crime Act to mean that if any part of any other criminal provision conflicted with any part of the act, the conflicting part would be sup…1 / 2
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Tatzel v. State, 356 So. 2d 787 (Fla. 1978)…offense. In such instance, discretion is vested in the State to determine for which offense a prosecution will be made. McDowell v. State, 160 Fla. 588, 36 So. 2d 180 (1948); Campbell v. State, 155 Fla. 359, 20 So. 2d 127 (1944); McConnell v. State, 298 So. 2d 550 (Fla. 2d DCA 1974). From a policy standpoint, even assuming the merit of appellant’s argument, it is not the province of this Court to vary the clear legislative intent expressed in a statute merely because of our belief as to the lack of wisdom of…
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Lawrence v. State, 330 So. 2d 160 (Fla. 1st DCA 1976)…enalty. Pastoria v. State, Fla.App.(4th), 312 So. 2d 808 (1975); Strada v. State, Fla.App.(4th), 267 So. 2d 702 (1972); and Lore v. State, Fla.App.(4th), 267 So. 2d 699 (1972). The Second District Court of Appeal in McConnell v. State, Fla.App.(2d), 298 So. 2d 550 (1974) disagreed with the Fourth District Court of Appeal and held that since the state has the right to prosecute under either statute, the sentence may be imposed for a term prescribed by the statute under which' the prosecution is maintained. See…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ellis Edmond v. State, 280 So. 2d 449 (Fla. 2d DCA 1973)
- Lore v. State, 267 So. 2d 699 (Fla. 4th DCA 1972)
- Strada v. State, 267 So. 2d 702 (Fla. 4th DCA 1972)
- State v. Benny Fred McCURDY, 257 So. 2d 92 (Fla. 2d DCA 1972)