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Cooks v. State

Florida Court of Appeals, First District

June 28, 2018

Lyndell J. Cooks, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Suwannee County. Paul S. Bryan, Judge.

          Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.

          BILBREY, J.

         Lyndell Cooks appeals his conviction for scheme to defraud arguing the trial court erred in denying his motion for a judgment of acquittal. We agree, reverse, and remand for entry of judgment and for resentencing on the lesser included offense of grand theft of property valued over $300 but less than $5, 000.

         Cooks was charged with engaging in a scheme to defraud in violation of section 817.034(4)(a), Florida Statutes. The charge was premised on a series of shoplifting incidents in a Live Oak Walmart. According to the State's evidence, Cooks would enter the store at various times on various days, would place items in a shopping cart, and then would dash from the store without paying for the goods. At the close of the State's case, Cooks moved for a judgment of acquittal arguing the prosecution had not established that he acted with an intent to defraud or otherwise made a misrepresentation to obtain the goods, an essential element of the charged offense. The prosecutor responded that every time Cooks left the store, he misrepresented that he was "a lawful paying customer" and so there was an "implied representation of ownership." In support of the State's position, the prosecutor cited Beamon v. State, 23 So.3d 209 (Fla. 4th DCA 2009), to the trial court. The trial court denied the motion for a judgment of acquittal. Cooks was found guilty of the charge and was sentenced to 36 months in prison followed by two years' probation.

         In reviewing a motion for judgment of acquittal we apply a de novo standard of review. See Pagan v. State, 830 So.2d 792 (Fla. 2002). If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. Id.

         The Florida Supreme Court has described the elements of the offense of committing a scheme to defraud, also known as "organized fraud," proscribed by section 817.034(4)(a), as follows:

(1) Engaging in or furthering a systematic, ongoing course of conduct (2) with (a) intent to defraud, or (b) intent to obtain property by false or fraudulent pretenses, representations, or promises, or willful misrepresentations of a future act, (3) resulting in temporarily or permanently depriving any person of the right to property or a benefit therefrom, or appropriating the property to one's own use or to the use of another person not entitled thereto.

Pizzo v. State, 945 So.2d 1203, 1207 (Fla. 2006) (emphasis added) (quoting Donovan v. State, 572 So.2d 522, 526 (Fla. 5th DCA 1990)).

         Even viewing the evidence in a light favorable to the State, there is no basis in the record for concluding Cooks acted with an intent to defraud or that he made a fraudulent representation, promise, or willful misrepresentation of a future act. What the evidence did plainly establish is that Cooks committed theft, the elements of which are:

(1) knowingly (2) obtaining or using, or endeavoring to obtain or use, property of another (3) with intent to deprive the person of a right to the property or a benefit therefrom, or to appropriate the property to one's own ...

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