Shields v. Smith

404 So. 2d 1106
CourtDistrict Court of Appeal of Florida
DecidedOctober 8, 1981
DocketZZ-413
StatusPublished
Cited by9 cases

This text of 404 So. 2d 1106 (Shields v. Smith) 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
Shields v. Smith, 404 So. 2d 1106 (Fla. Ct. App. 1981).

Opinion

404 So.2d 1106 (1981)

Harmon W. SHIELDS, Appellant,
v.
Nevin G. SMITH, As Secretary of Administration, and A.J. McMullian, III, As State Retirement Director, Appellees.

No. ZZ-413.

District Court of Appeal of Florida, First District.

October 8, 1981.

*1108 Thomas M. Ervin, Jr., and E.C. Deeno Kitchen of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.

Augustus D. Aikens, Div. Atty., Div. of Retirement, Dept. of Administration, Tallahassee, for appellees.

ROBERT P. SMITH, Jr., Chief Judge.

Shields, the former executive director of the Department of Natural Resources, appeals a circuit court judgment that his conviction of federal crimes committed while he held State office requires forfeiture of his State retirement benefits. Section 121.091(5)(f), Florida Statutes (1979).[1] We affirm.

In August 1980 the United States District Court for the Northern District of Florida convicted Shields on three counts of violating the Hobbs Act, 18 U.S.C. § 1951 (1976), which provides in pertinent part:

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, ... shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
(b) As used in this section —
.....
(2) The term "extortion" means the obtaining of property of another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. (Emphasis supplied)

*1109 The jury returned general verdicts of guilt to all three counts of an indictment charging Shields and real estate broker Jack Quick with one count of conspiring and two counts of attempting to obtain money to which they were not entitled from another broker, H. Bruce McIver, whose clients wanted to sell certain properties to the State under DNR's program for the acquisition of environmentally endangered lands. Chapter 259, Fla. Stat. (1979). Key sections of the indictment alleged that Shields conspired and attempted to obtain money by extortion "under color of official right,"

in consideration for the defendant's official acts as Executive Director, State of Florida Department of Natural Resources, so that the defendant SHIELDS would suspend his independent and unbiased judgment on the merits when considering the recommendation of the purchase of certain lands ... pursuant to the State's Environmentally Endangered Lands program.

Section 121.091(5)(f), Florida Statutes, forfeits the benefits otherwise payable to a member of the State retirement system who is "found guilty by verdict of a jury, or by the court trying the case without a jury," of specified crimes committed before retirement, including "bribery in connection with the employment, or other felony specified in chapter 838." The trial court rightly held that the "acts charged and for which the defendant was found guilty" constituted requesting or soliciting unlawful compensation for official behavior, a third degree felony proscribed by Section 838.016(1), Fla. Stat. (1979). That statute provides:

It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or other benefit not authorized by law, for the past, present, or future performance, nonperformance, or violation of any act or omission which the person believes to have been, or the public servant represents as having been, either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty... .

Forfeiture Based on Federal Conviction

The recital of disqualifying crimes in Section 121.091(5)(f) contains no express reference to federal court convictions or to convictions in the courts of other states. On that account, arguing a strict interpretation of this forfeiture statute, Shields argues that the only disqualifying crimes are Florida crimes adjudicated by the State courts of Florida. We do not agree. A federally adjudicated crime is cause for forfeiture if it otherwise satisfies the specifications of the statute.

The disqualifying crimes pertinent to this case are, in the terms of Section 121.091(5)(f), "bribery in connection with the employment, or other felony specified in chapter 838." Shields was not convicted of any crime entitled "bribery," so we must decide whether he was convicted of a felony specified in chapter 838. Encountering the word "felony" when it appears in Florida statutes, we are bound to give it the meaning assigned by Florida's Constitution. See Rotstein v. Dept. of Professional and Occupational Regulation, 397 So.2d 305, 308 (Fla. 1st DCA 1981) (On petition for rehearing). Article X, Section 10 of the 1968 Constitution provides:

The term "felony" as used herein and in the laws of this state shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or by imprisonment in the state penitentiary.

Rotstein characterized this constitutional definition as a "compelling instrument of statutory construction." 397 So.2d at 309. That definition, which is incorporated also in the general statutory definition of the term felony,[2] unmistakably encompasses crimes committed against other sovereigns, *1110 which if committed in Florida would be punishable by a Florida court as a felony.

The fact that Shields' federal offenses were indeed committed in Florida, in a geographic sense, does not exempt them from the disqualifying list on grounds that they were directly prosecutable in Florida State courts, but were not so prosecuted, and therefore do not qualify as crimes "that would be punishable [as a felony] if committed in this state." Such a construction would give disqualifying effect to judgments of conviction entered by a court of any other State or of any United States court save only the courts of the Northern, Middle, and Southern Districts of Florida. There is no reason to attribute such a meaning to the statute, and the Supreme Court has not on that ground disregarded the convictions of federal courts, sitting in Florida, for crimes committed in Florida against the United States. See In re Weathers, 159 Fla. 390, 31 So.2d 543 (Fla. 1947), where the Court concluded that a Jacksonville physician's mailing of nonmailable matter, resulting in conviction by a Florida federal court, was not a felony supporting license revocation, but only because the federal crime was not an act constituting a felony under Florida laws.

Acts for which Shields was Convicted

Focusing now on the acts for which Shields was convicted, as described in the charging instrument, we find that those acts constitute and would support a Florida conviction of a Chapter 838 felony, namely, requesting or soliciting unlawful compensation for official behavior. Section 838.016(1). We disregard Shields' conspiracy conviction because the crime of conspiracy as interpreted by the federal courts under the Hobbs Act[3] lacks essential elements of Chapter 838 felonies.

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