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Barrios v. State

Florida Court of Appeal, Fourth District

November 30, 2011

Orlando BARRIOS, Appellant,
v.
STATE of Florida, Appellee.

Page 375

Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

Appellant was convicted of attempting to obtain a mortgage by false representation, grand theft in the first degree, and providing false information to defraud a financial institution. We find that the trial court erred in reducing the count of obtaining a mortgage by false representation to an attempt, instead of granting a judgment of acquittal. We also find that the trial court erred in not granting a judgment of acquittal as to grand theft in the first degree. Finally, as to providing false information to defraud a financial institution, we find that the trial court correctly denied the judgment of acquittal, and we affirm appellant's conviction for that count.

Appellant obtained a $315,000 mortgage in order to purchase land and build a home. Appellant approached his girlfriend's cousin, a mortgage broker, in order to obtain financing. Appellant filled out a uniform residential loan application and listed his gross monthly income as $8,900 per month. The loan application process required appellant to fill out a second loan application, where appellant again listed his gross income as $8,900 per month. At closing, appellant listed his income as $8,900 per month a third time. The state's theory of prosecution was that appellant falsified his monthly income by inflating it in order to qualify for approval for the mortgage. The state presented evidence that appellant's wages in 2003, 2004, and 2005 were less than the income reported by appellant on his mortgage application. The state contended that the evidence of the incomes presented in appellant's income tax returns proved that appellant submitted false information on the mortgage application.[1]

Page 376

At trial, appellant moved for judgment of acquittal on all three counts. As to the count of obtaining a mortgage by false representation, after the state conceded that there was only circumstantial evidence of reliance by the bank on appellant's false information in issuing the mortgage, the trial court granted a judgment of acquittal and reduced that count to an attempt. [2] The trial court denied the other motions for judgment of acquittal, and appellant was convicted of the three counts. This appeal ensued.

A motion for judgment of acquittal is reviewed under a de novo standard of review. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). " Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence." Id. However, " [w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." State v. Law, 559 So.2d 187, 188 (Fla.1989).

Appellant was convicted of attempting to obtain a mortgage by false representation. The statute specifically provides:

Any person who, with intent to defraud, obtains any mortgage, mortgage note, promissory note or other instrument evidencing a debt from any person or obtains the signature of any person to any mortgage, mortgage note, promissory note or other instrument evidencing a debt by color or aid of fraudulent or false representation or pretenses, or obtains the signature of any person to a mortgage, mortgage note, promissory note, or other instrument evidencing a debt, the false making whereof would be punishable as forgery, shall be guilty of a felony of the third degree....

ยง 817.54, Fla. Stat. (2009).

Further, to prove this crime, there must be evidence of the victim's reliance on the defendant's misrepresentation. Adams v. State, 650 So.2d 1039, 1041 (Fla. 3d DCA 1995). Section 817.54 " criminalizes a specific form of false pretense crime. Accordingly, the victim's reliance on the false or misrepresented information is an essential element of the offense." Id. (citations omitted). In this case, the alleged fraud was completed. The forms indicating appellant's monthly income were filled out and submitted for consideration of a mortgage. The state, however, was unable to introduce evidence that the bank issuing the mortgage specifically relied on the forms filled out by appellant certifying his monthly income. A conviction for mortgage fraud will be vacated where there is no proof of reliance on the misrepresentation by the victim. See

Page 377

Grant v. State, 43 So.3d 864, 868-69 (Fla. 5th DCA 2010); Pizzo v. State,910 So.2d 287, 293 ...


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