Darwish v. State

937 So. 2d 789, 2006 WL 2621781
CourtDistrict Court of Appeal of Florida
DecidedSeptember 13, 2006
Docket2D05-4643
StatusPublished
Cited by1 cases

This text of 937 So. 2d 789 (Darwish 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
Darwish v. State, 937 So. 2d 789, 2006 WL 2621781 (Fla. Ct. App. 2006).

Opinion

937 So.2d 789 (2006)

Salah E. DARWISH, Appellant,
v.
STATE of Florida, Appellee.

No. 2D05-4643.

District Court of Appeal of Florida, Second District.

September 13, 2006.

*790 Ronald N. Toward, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Salah E. Darwish challenges his judgment and sentence for the third-degree felony of cheating, section 817.29, Florida Statutes (2004). Mr. Darwish was convicted of cheating by false pretenses after an investigation showed that he was selling bottled water that had been distributed gratuitously as relief supplies in the aftermath of Hurricane Charley. Because the State failed to prove that the distributor of the supplies relied on a misstatement of fact made by Mr. Darwish concerning his intended use of the bottled water, we reverse the judgment and sentence imposed on Mr. Darwish.

I. THE FACTS

On August 13, 2004, Hurricane Charley roared ashore at Charlotte Harbor in Charlotte County. The storm left a path of destruction in its wake as it crossed the state in a northeasterly direction over central Florida. Polk County suffered severe and widespread damage from the storm. The small community of Alturas, which is located south of State Road 60 between Bartow and Lake Wales, was especially hard hit. Many individuals and businesses in the area were without electrical power and water for several days.

Officials managing the relief effort made arrangements for bottled water and ice to be shipped from out of state directly to distribution centers in the areas where they were needed. The Alturas Fire Station was one of the centers designated for the distribution of these essential relief supplies. Firefighters and volunteers working at the station assisted in unloading the trucks and distributing the supplies.

The bottled water was distributed at no charge. Persons receiving the water were not required to fill out an application or to identify themselves. Two cases of water was a normal distribution in the first days of the relief effort. However, the relief workers would give additional cases on request to people who had special needs or who were taking water for distribution to others. In such instances, the relief workers might ask persons requesting additional cases to explain what they were doing with the water.

At the time of the storm, Mr. Darwish operated a convenience store in Alturas that was located around the corner from the fire station. The store was without electrical power and fresh water after the storm. On August 17, 2004, Belinda Tanner—an Alturas resident—visited Mr. Darwish's store. Ms. Tanner had previously received several cases of bottled water at the fire station. On her visit to Mr. Darwish's store, Ms. Tanner noticed that he was selling the same kind of bottled water that was being distributed for free at the nearby fire station. Ms. Tanner linked the water that Mr. Darwish was selling to the relief supplies because it was *791 a distinctive brand that was not normally sold or distributed in Florida. Ms. Tanner bought a gallon bottle of water and a cup of ice from Mr. Darwish for $1.59. A legend on the bottle stated that the water had been bottled on August 15, 2004, two days after the storm. However, the bottle did not indicate that it was not intended for resale. Ms. Tanner saved the bottle and marked it so that she could identify it later as having been purchased from Mr. Darwish. After she left the store, Ms. Tanner contacted the authorities and complained about Mr. Darwish's sale of the water.

Mr. Ruben Gardner of the Florida Department of Agriculture and Consumer Services responded to Ms. Tanner's complaint. After speaking with Ms. Tanner, Mr. Gardner visited Mr. Darwish's store. Mr. Gardner observed and photographed the same brands of bottled water in the store's cooler that had been distributed at the nearby fire station as part of the relief effort. Mr. Gardner saw additional cases of the water from the relief effort stored on the floor in the back of the store. Mr. Darwish initially denied that he had obtained the water from the fire station. After Mr. Gardner questioned him further, Mr. Darwish admitted that the bottled water in the store came from the relief supplies. Mr. Darwish offered to make amends by writing a check as a donation to the fire department. Mr. Gardner arranged for some of the water to be returned to the fire station.

II. THE PROCEEDINGS IN THE CIRCUIT COURT

Following the completion of Mr. Gardner's investigation, the State charged Mr. Darwish with committing three felonies: initiating the theft of property and trafficking in that property, section 812.019(2), a first-degree felony (count one); scheming to defraud and obtaining property thereby, section 817.034(4)(a)(3), a third-degree felony (count two); and cheating by false pretenses, section 817.29, a third-degree felony (count three). The parties agreed to a bench trial. The State nolle prossed count two before trial, and Mr. Darwish was tried on the trafficking-in-stolen-property and cheating charges. The defense challenged the sufficiency of the State's proof with a timely motion for a judgment of acquittal on both charges. The trial court entered a verdict that acquitted Mr. Darwish of the trafficking charge and found him guilty of cheating by false pretenses. Afterward, the trial court adjudged Mr. Darwish to be guilty of cheating and placed him on probation for five years.

The State's main witness on the cheating charge was Lawrence Burrell, a Polk County firefighter. Mr. Burrell was assigned to the Alturas Fire Station. One of Mr. Burrell's duties after the hurricane was distributing relief supplies to residents of the area. Mr. Burrell had known Mr. Darwish before the storm because he had visited Mr. Darwish's nearby store.

Mr. Burrell testified that on his first contact with Mr. Darwish after the hurricane, Mr. Darwish came to the fire station with a shopping cart. On this occasion, Mr. Darwish collected ice and "probably just a couple of cases" of bottled water. Approximately two days later, Mr. Darwish came to the fire station in his van. Mr. Burrell believed that Mr. Darwish picked up more than two cases of water on the second visit "because in the van he can carry a little bit more." The noteworthy feature of Mr. Darwish's second appearance at the fire station was a gratuitous comment that he made to Mr. Burrell, "It's not like I'm going to go and sell out of my store." Mr. Darwish concluded this unsolicited remark with laughter.

*792 III. THE PARTIES' ARGUMENTS

Mr. Darwish argues that the verdict of guilty for cheating is unsupportable because of the absence of any "nexus" between Mr. Darwish's comment noted above and his receipt of the bottled water. In support of this point, Mr. Darwish points out that there was no evidence that his comment induced Mr. Burrell to part with the water. In response, the State characterizes Mr. Darwish's conduct as "beyond words" and "tragic." The State argues that the bottled water was "obviously" not intended for re-sale and was restricted for consumption by victims as part of the hurricane relief effort.

IV. DISCUSSION

A. Introduction

A claim that a person has misappropriated relief supplies intended for the victims of a natural disaster naturally provokes public outrage and condemnation. See, e.g., Wiley v. Ohio/Oklahoma Hearst Argyle Television, Inc., 33 Fed.Appx.

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937 So. 2d 789, 2006 WL 2621781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darwish-v-state-fladistctapp-2006.