Opinion
No. 96-4192.
November 25, 1998. Rehearing Denied January 15, 1999.
Appeal from the Circuit Court, Palm Beach County, Roger B. Colton, Judge.
Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellant.
Marc S. Nurik of Ruden, McClosky, Smith, Schuster Russell, P.A., Fort Lauderdale, for appellee Roy Gusow.
David G. Vinikoor of David G. Vinikoor, P.A., Fort Lauderdale, for appellee Warren Stang.
The state appeals an Order on Defendants' Omnibus Motion to Dismiss Amended Information, which struck several predicate incidents and dismissed certain counts of an eighty-two count amended information charging the seven defendants with Racketeer Influence and Corrupt Organizations Act violations (RICO) and loan broker fraud violations. We affirm in part and reverse in part.
The amended information charged the defendants with one count of racketeering, one count of conspiracy to commit RICO violations (count 2), one count of conspiracy to commit grand theft (count 82), and several counts of grand theft, loan broker fraud, and unlawful advance fee. In their motion to dismiss, the defendants sought dismissal of various predicate offenses on the basis that the "relating to" clauses following each of the chapter and/or section numbers in the definition of "racketeering activity" contained in section 895.02(1), Florida Statutes (1993), were intended by the legislature to restrict the crimes chargeable as predicate offenses. Because section 895.02(1)(a)11. defines racketeering activity to include any crime chargeable by indictment or information under "Chapter 687, relating to interest and usurious practices," (emphasis supplied), the defendants argued the legislature intended that only those crimes in chapter 687 relating to interest and usurious practices would fit within the definition of racketeering activity. They argued the various predicate offenses of the information that related to collection of an advance fee from a borrower and loan broker fraud did not "relate to" interest and usurious practices, and therefore did not fall within the definition of "racketeering activity." The trial court agreed with the defendants, and we affirm. See State v. Kessler, 626 So.2d 251 (Fla. 4th DCA 1993), rev. denied, 634 So.2d 627 (Fla. 1994).
We also agree with the trial court's decision to strike predicate GGGG and count 82 because these provisions fail to apprise the defendants of the nature of the theft or the object of the conspiracy as required by State v. Smith, 240 So.2d 807 (Fla. 1970). Count 82 and GGGG allege a conspiracy in the most general terms. Without more specific allegations, the trial court correctly concluded these provisions did not allow the defendants to prepare a defense and exposed them to substantial danger of a new prosecution after conviction or acquittal.
Finally, the trial court dismissed count 2 on the basis this count did not specify which subsection of section 895.03 the defendants were charged with conspiring to commit, and failed to include statutory citation to specific racketeering offenses. We reverse because count 2 of the instant information alleged an enterprise and specifically tracked the language of section 895.03(3). An instrument charging a violation of the RICO Act "need not specify the relationship among crimes or defendants on its face. If the instrument tracks the statute and alleges the existence of a criminal `enterprise,' defendants are sufficiently on notice as to the nature of the charge." State v. Whiddon, 384 So.2d 1269 (Fla. 1980).
AFFIRMED IN PART and REVERSED IN PART.
STEVENSON and TAYLOR, JJ., concur.
I concur in the majority opinion, but write separately to address a concern about the "relating to" clauses contained in the definition of "racketeering activity" in section 895.02(1). If we were writing on a clean slate, (i.e., before this court's opinion in Kessler), I would be inclined to reverse the court's dismissal of the various predicate offenses of the information that related to collection of an advance fee from a borrower and loan broker fraud.
In United States v. Kopituk, 690 F.2d 1289 (11th Cir. 1982), the Eleventh Circuit accepted an argument similar to that made by the state in the instant case. In Kopituk, the court determined the parenthetical language contained within the definition of "racketeering activity" found in 18 U.S.C. § 1961(1)(c), which is similar to Florida's "relating to" clauses, was not intended to limit the predicate incidents chargeable under the Federal RICO Act. Florida's RICO Act is modeled after the federal act, such that Florida courts should look to Federal courts for guidance in interpreting and applying the state act and should accord great weight to federal decisions." Ruth v. State, Dept. of Legal Affairs, 661 So.2d 901 (Fla. 2d DCA 1995), aff'd, 684 So.2d 181 (Fla. 1996).
Thus, it is not entirely clear whether the Florida legislature intended to limit application of the RICO Act as we determined in Kessler. The legislature may wish to examine these differing interpretations of the Federal RICO Act and the Florida RICO Act, to provide more guidance on this question.