Lyndell J. Cooks, Appellant,
State of Florida, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Suwannee County. Paul S.
Thomas, Public Defender, and Danielle Jorden, Assistant
Public Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant
Attorney General, Tallahassee, for Appellee.
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,
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'
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
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
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)).
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 ...