Armas v. State

947 So. 2d 675, 2007 WL 283690
CourtDistrict Court of Appeal of Florida
DecidedFebruary 2, 2007
Docket2D05-4180
StatusPublished
Cited by1 cases

This text of 947 So. 2d 675 (Armas v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armas v. State, 947 So. 2d 675, 2007 WL 283690 (Fla. Ct. App. 2007).

Opinion

947 So.2d 675 (2007)

Mariela Abreus ARMAS, Appellant,
v.
STATE of Florida, Appellee.

No. 2D05-4180.

District Court of Appeal of Florida, Second District.

February 2, 2007.

James Marion Moorman, Public Defender, and Sharon Morgan Vollrath, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Mariela Abreus Armas challenges her judgment and sentence for the first-degree felony of criminal use of personal identification. § 817.568(2)(c), Fla. Stat. (2003). Ms. Armas pleaded nolo contendere in accordance with a plea agreement negotiated with the State. We find, however, that the record does not support a first-degree felony conviction under the 2003 statute as charged because a plain reading of the statute does not allow the State to aggregate the dollar amounts involved from multiple victims. Therefore, we reverse the judgment and sentence.

I. THE FACTS

On July 30, 2003, law enforcement apprehended Ms. Armas immediately after she attempted to cash a counterfeit check at a Collier County bank. The check was drawn on the account of a local building company and made payable to Linda M. Coutts for $5082.23. For identification, Ms. Armas presented what appeared to be a valid Florida driver's license issued in Linda M. Coutts' name but displaying Ms. Armas' photograph.

Using bank surveillance videotapes and thumbprint identification, investigators subsequently discovered that Ms. Armas *677 was part of a large counterfeit check-cashing ring. They connected her to fourteen illegal transactions that had occurred between June 2, 2003, and July 30, 2003. In each of these transactions, Ms. Armas presented a forged check payable to Linda M. Coutts and attempted to cash the check using the same fraudulent Florida driver's license. According to the record, the checks ranged in value from $2800 to $18,000. The checks were drawn on the bank accounts of eight individuals and four local business entities. According to the State, the amounts of the checks totaled $51,600. When confronted with evidence of the numerous illegal transactions, Ms. Armas admitted that she had knowingly used a fraudulent Florida driver's license as identification to cash checks that she knew were forged.

II. PROCEEDINGS IN THE LOWER COURT AND PLEA AGREEMENT

A. The Charges

The State originally charged Ms. Armas with twenty-four offenses, including scheme to defraud, grand theft, uttering a forged instrument, unlawful possession of a license, and fraudulent use of personal identification. The State amended the charging document twice, and the trial court dismissed six of the charges.[1] In the end, the State charged Ms. Armas with twenty-five felonies of varying degrees, all according to Florida Statutes (2003):

• Criminal use of personal identification information (one count) — $50,000 or more, section 817.568(2)(c), a first-degree felony.
• Scheme to defraud (one count) — aggregate value of $50,000 or more, section 817.034(4)(a)(1), a first-degree felony.
• Criminal use of personal identification information (eighteen counts) — less than $5000, section 817.568(2)(a), a third-degree felony.
• Grand theft (five counts) — $300 or more, section 812.014(2)(c)(1), a third-degree felony.

B. The Plea Agreement

On August 4, 2005, more than two years after her arrest, Ms. Armas made a plea agreement with the State. Under the agreement, the State undertook to nolle pros the scheme to defraud charge (a first-degree felony) and all of the remaining third-degree felony charges. In return, Ms. Armas agreed to plead nolo contendere to the first-degree felony charge for criminal use of personal identification information— $50,000 or more. In addition, Ms. Armas reserved her right to appeal specific rulings that the trial court had made against her on questions of law.[2] Although these issues are more fully discussed below, the core of the parties' dispute was (1) whether the State could aggregate the dollar amounts of the offenses to reach the $50,000 threshold level for count one, (2) whether Ms. Armas' series of crimes constituted a continuing offense, and (3) if it was a continuing offense, whether the 2002 or 2003 version of the statutes should apply.[3] This third question *678 arose because section 817.568(2)(c), Florida Statutes (2003), the statute to which Ms. Armas pleaded nolo contendere, went into effect on July 1, 2003, midway through her series of fraudulent transactions.

C. The Strategies

In making the plea agreement that allowed Ms. Armas to reserve her right to appeal, each side was motivated by a specific strategy and an expected sentencing outcome. The State's declared strategy was to combine the value of the underlying fourteen illegal transactions and obtain a single first-degree felony conviction that carried a statutorily defined five-year minimum sentence. The State was convinced that the provisions of the 2003 statute authorized the aggregation of the value of the underlying illegal transactions involving individuals:

(c) Any person who willfully and without authorization fraudulently uses personal identification information concerning an individual without first obtaining that individual's consent commits a felony of the first degree, . . . if the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated is $50,000 or more or if the person fraudulently uses the personal identification information of 20 or more individuals without their consent.

§ 817.568(2)(c), Fla. Stat. (2003) (emphasis added).

Ms. Armas' declared strategy in pleading to the first-degree felony was to avoid a trial and to ensure that her maximum sentence would be five years in prison. Unlike the State, Ms. Armas believed that the 2002 version of the statute applied to her offense. Under the 2002 version, criminal use of personal identification is a third-degree felony. § 817.568(2)(a), Fla. Stat. (2002). Only where the amount of the injury or fraud perpetrated is $75,000 or more does the level of the offense rise to a second-degree felony. § 817.568(2)(b), Fla. Stat. (2002). For this reason, Ms. Armas maintained that she was guilty of only a third-degree felony, not a first-degree felony. By pleading with a reservation of her right to appeal, Ms. Armas could begin serving her first-degree felony sentence in the hope of a favorable appellate ruling that might result in the reduction of the length of the prison term she would have to serve.[4]

D. The Stipulation and Agreed-Upon Outcome

Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) requires that "[a] defendant who pleads . . . nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved." (Emphasis added.) For its part, the State stipulated at Ms. Armas' plea hearing that the legal questions of aggregation and continuing offense were dispositive.[5] Therefore, Ms. *679 Armas was not required to move to withdraw her plea in order to challenge her conviction and sentence.

In this case, the State and the defense agreed that Ms.

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947 So. 2d 675, 2007 WL 283690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armas-v-state-fladistctapp-2007.