Cunningham v. Koon

762 So. 2d 572, 2000 Fla. App. LEXIS 8269, 2000 WL 873670

Opinion

PER CURIAM.

Appellant was sued for legal malpractice. Only one point raised by appellant has merit. Central to the plaintiffs theory was that appellant drafted a note which violated the criminal usury statute, section 687.071, Florida Statutes (1999). Whether the transaction was criminally usurious was a question of fact to be decided by the jury. The charge to the jury on criminal usury was deficient, in that it allowed a finding of criminal usury if the plaintiff/clients “intended to get more than twenty-five percent per year in interest” on the loan in question. Section 687.071(2) makes it a second degree misdemeanor to “willfully and knowingly charge, take, or receive interest ... at a rate exceeding 25 percent per annum but not in excess of 45 percent per annum, or the equivalent rate for a longer or shorter period of time, whether directly or indirectly.” The charge to the jury devalued and minimized the state of mind requirement imposed by the statute. See Jersey Palm-Gross, Inc. v. Paper, 658 So.2d 531 (Fla.1995).

Reversed and remanded for a new trial.

GUNTHER, FARMER and GROSS, JJ., concur.