Florida/Georgia Personal Injury & Workers Compensation

...ate it to his own use. Based upon the latter finding, which in effect determined that Senfeld had violated Florida's Anti-Fencing Act, more commonly called the theft statute, see §§ 812.012, et seq., Fla. Stat. (1983), the trial court, pursuant to Section 812.035(7), tripled the damages found by the jury and entered judgment against Senfeld for $30,000....

...is complete, see State v. King, 282 So.2d 162 (Fla. 1973), without regard to when the crime is discovered, the statute of limitations began to run in 1975 when he appropriated the $10,000 to his own use. Senfeld is mistaken in his premise. Although Section 812.035, Florida Statutes, the civil remedies section of the theft statute, is quite clearly incorporated in a statute which defines and prohibits crimes, it does not follow that rules pertaining to criminal cases apply to the civil action brought thereunder....

...denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975) ("A civil proceeding to enjoin [criminal] acts is not rendered criminal in character by the fact that the acts also are punishable as crimes."). [9] Perhaps even more compelling is the language of Section 812.035(10), which states in part: "Notwithstanding any other provision of law, a criminal or civil action or proceeding under ss....

...ctive law, or the general rule against the retrospective operation of statutes."). Cf. Village of El Portal v. City of Miami Shores, 362 So.2d 275 (remedial statute with specific retroactivity provision). We have little difficulty in concluding that Section 812.035 is remedial in nature and thus applies retroactively....

...Texaco, Inc., 630 F.2d 46 (2d Cir.1980) (same). It follows, of course, that the awarding of triple damages is nothing more than a ministerial act which has nothing whatever to do with the fact-finding function of the jury. We think the same holds true for the award of triple damages under Section 812.035(7), Florida Statutes. Affirmed. NOTES [1] The trial court reserved jurisdiction to award attorneys' fees and costs. See § 812.035(7), Fla....

...ld took the money with the then-formed intent to wrongfully deprive the Trust Company of it) and that the Trust Company knew or should have known of it at that time, then even assuming, arguendo, that the five-year statute of limitations provided in Section 812.035(10) applied, but see Dade County v....

...See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982). Thus, Senfeld was on notice that conversion was unlawful in 1975, and no due process right of his would be implicated by applying the statute retroactively. [13] This statement is limited to Section 812.035 providing for civil remedies....

...laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained,..." Section 812.035(7), Florida Statutes (1983), provides in pertinent part: "Any person who is injured in any fashion by reason of any violation of the provisions of ss....

...It covers, among other things, conduct previously known as stealing, obtaining money under false pretenses, fraud or deception. Section 812.-012(2)(d)l, Florida Statutes (1983). Any person injured by reason of a violation of this provision has a cause of action for threefold the actual damages sustained. Section 812.035(7), Florida Statutes (1983)....

...n's counterclaim for partition. He subsequently awarded Marlin $80,000 in attorney's fees. These appeals followed. We hold that recovery of damages for breach of contract will not support a trebling of such damages pursuant to the provisions of Sec. 812.035(7), Florida Statutes (Supp. 1984), that such trebling is only warranted when there is no contractual relationship between the parties. Section 812.035(7) [4] is clearly a departure from common *625 law which proscribes a penalty [5] which did not exist at common law and should be strictly construed and limited in its application....

...agement fees. In the final judgment, the court found that Marlin was owed $138,704.82 pursuant to the contract. A dispute between two persons over the amount of money that one person is owed does not become a crime of theft which is actionable under Section 812.035(7), Florida Statutes (Supp....

...Anderson & Anderson, P.A., 453 So.2d 1167 (Fla. 4th DCA 1984) (client entitled to sum held in trust by attorneys which was not in dispute and retention of said amount was a conversion). The attorney's fees having been awarded pursuant to the provisions of Sec. 812.035(7), Fla....

...r the purposes of this opinion we will consider that treble damages were demanded for the breach of contract, without deciding the question. See and compare Getelman v. Levey, 481 So.2d 1236 (Fla.3d DCA 1986). [4] Chapter 812 Fla. Stat. (1984 Supp.) 812.035 Civil Remedies: limitation on civil and criminal actions....

...After a non-jury trial, the district judge concluded that Advanced had breached its contract with Automated and Automated had incurred $72,100.00 in damages. The district judge also concluded that Advanced's actions amounted to theft under Fla. Stat. § 812.014 (1983) and trebled the damages pursuant to Fla. Stat. § 812.035(7) (Supp....

...Barbe counterclaimed to retain possession and title. Additionally, Barbe cross-claimed, pursuant to section 812.014, Florida Statutes (1981), against Tashea and Atlas for theft of the purchase price. When Tashea failed to respond to the cross-claim, Barbe moved for a default judgment. Pursuant to section 812.035(7), Florida Statutes (1981), Barbe received final judgment for treble damages in the amount of $150,000 as well as attorney's fees in the amount of $17,500....

...y to interfere with plaintiffs' business relationship with their customers (Count XX), a violation of the Florida Unfair and Deceptive Trade Practices Act, sections 501.201-501.213, Florida Statutes,(Count XXI), an action for civil theft pursuant to section 812.035, Florida Statutes, (Count XXII), and a violation of the Florida Racketeer Influenced and Corrupt Organization Act, sections 895.01-895.06, Florida Statutes, (Count XXIII)....

...crimes. Futch maintains, and we agree, that under Rosen v. Marlin, 486 So.2d 623 (Fla. 3d DCA) review denied, 494 So.2d 1151 (Fla. 1986), recovery of damages for breach of contract will not support a trebling of such damages under the provisions of section 812.035(7), Florida Statutes (1985)....

...Accountants spent nearly 40 hours reviewing Rosen's books attempting to determine who owed what to whom. Marlin eventually sued Rosen for breach of contract, civil theft, and conversion. The trial judge awarded Marlin $138,704.82, and then trebled that amount pursuant to section 812.035(7), Florida Statutes (Supp. 1984). On appeal, the Third District Court of Appeal held that "recovery of damages for breach of contract will not support a trebling of such damages pursuant to the provisions of Sec. 812.035(7), Florida Statutes (Supp....

...1984), [and] that such trebling is only warranted where there is no contractual relationship between the parties." 486 So.2d at 624. In explaining its holding, the court stated: A dispute between two persons over the amount of money that one person is owed does not become a crime of theft which is actionable under section 812.035(7), Florida Statutes (Supp....

...with a specific finding of conversion. Head's reading of Rosen is implausible in view of that decision's unequivocal holding: "recovery of damages for breach of contract will not support a trebling of such damages pursuant to the provisions of Sec. 812.035(7), Florida Statutes (Supp....

...such trebling is only warranted when there is no contractual relationship between the parties." 486 So.2d at 624 (emphasis added). The teaching of the Rosen decision, therefore, is that the existence of a contract negates any trebling of damages under section 812.035(7), irrespective of whether or not the trial court has made a specific finding of conversion....

...Yet we find nothing in the language of the Anti-Fencing Act to support the construction of the statute which Head would have this court apply. And despite the holding of the Third DCA in Rosen v. Marlin , which explicitly interpreted the treble damage provision of section 812.035(7) as precluding a concurrent award for breach of contract and conversion, Head directs us to no decision which has extended section 812.035(7) in the manner which he advocates. We therefore conclude that neither the Anti-Theft Act nor existing case law interpreting that act support the trial court's award of treble damages under section 812.035(7), Florida Statutes (Supp....

...f a right to the property or a benefit therefrom. (b) Appropriate the property to his own use or to the use of any person not entitled thereto. Florida law provides a civil remedy for theft for treble damages. This provision was formerly codified at section 812.035(7), but is now codified at Fla.Stat.Ann....

...§§ 1962 (c) and 1964 (Supp.1984). Count VII alleges that appellees violated the Florida racketeering statutes, Fla.Stat.Ann. §§ 895.03(3) and 895.03(4) (Supp.1984). Count VIII alleges that appellees have deprived Shahawy of a property right in violation of Fla.Stat. § 812.035(7) (Supp.1984)....

...Complaint. Instead, the Plaintiff has indicated that if Summary Judgment is *487 entered, it is willing to waive the claims it has asserted in Counts Four and Five of its First Amended Complaint. Count Four raises a civil theft claim under Fla.Stat. § 812.035(7), for violation of Fla.Stat....

...Keene in the Circuit Court for Palm Beach County, Florida. On April 26, 1988, judgment was entered after a jury verdict against Pelican Unlimited, Inc. and Ronald E. Keene. (Trial Ex. 1) The judgment provides that the jury "found the Defendants liable for civil theft under Florida Statutes § 812.035 and § 812.014, and thereby found the Defendants liable for theft, larceny and having obtained money *165 through false pretenses." The $88,605.67 judgment consists of $25,000.00 in actual damages, which were then trebled, plus costs, prejudgment interest and attorney's fees....

...Shevin, 354 So.2d 372 (Fla.1977); Universal Construction Co. v. City of Ft. Lauderdale, 68 So.2d 366 (Fla.1953). The state court judgment found both defendants Ronald E. Keene, individually, and Pelican Unlimited, Inc. liable for civil theft under Florida Statutes § 812.035 and § 812.014....

...necessary to prove willful and malicious injury to the plaintiffs or their property under § 523(a)(6). The state court final judgment entered pursuant to a jury verdict found the defendant, Ronald E. Keene, liable for civil theft under Fla.Stat. §§ 812.035(7) and 812.014(1) (1985). [2] Florida Statute § 812.035(7) (1985) provides as follows: (7) Any person who is injured in any fashion by reason of any violation of the provisions of §§ 812.012-812.037 or section 812.081 has a cause of action for three-fold the actual damages sustained * * * In...

...NOTES [1] This standard is lower than the clear and convincing standard previously established by the Eleventh Circuit Court of Appeals. See e.g. Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1262 (11th Cir.1988). In Grogan the Supreme Court resolved the split of authority on this issue. [2] In 1987, Fla.Stat. § 812.035(7) was amended to eliminate a private right of action.

...ty as trustees. Furthermore, the depository itself did not need to be named in the suit, where all parties interested in the trust res were before the court. Southeast bases its claim for injunctive relief on Florida's Anti-Fencing Act, particularly Section 812.035(6), Florida Statutes (1983), and Florida's RICO (Racketeer Influenced and Corrupt Organizations) Act, Section 895.05(6), Florida Statutes (1983)....

...Upon the execution of proper bond against damages for an injunction improvidently granted and a showing of immediate danger of significant loss or damage, a temporary restraining order and a preliminary injunction may be issued in any such action before a final determination on the merits. Section 812.035, Florida Statutes, also gives rise to injunctive relief in the Anti-Fencing Act....

...d under the criminal bad check provisions of § 832.05, Florida Statutes, as had the Legislature intended to create a private right of action *977 under the statute it would have expressly provided for one, as it did under the criminal theft statute § 812.035, Florida Statutes....

...Blue, a/k/a R.L. Blue a/k/a Bob Blue, R.L. Blue & Co., Inc. and Blue, Lovett, Keyes & Co., Inc.] in the Dade County Circuit Court. Count VI of the complaint alleged a larceny of certain items of property by the defendants and sought a civil remedy under Section 812.035, Florida Statutes (1979); count VII of the complaint alleged an unlawful conspiracy by the defendants for violation of Florida Anti-Racketeering Act, § 943.462(2), Fla....

...Before TJOFLAT and HENDERSON, Circuit Judges, and NICHOLS * , Senior Circuit Judge. PER CURIAM: 1 This appeal concerns the district court's finding of theft as defined by Fla.Stat. Sec. 812.014 (1983) and trebling of damages pursuant to Fla.Stat. Sec. 812.035(7) (Supp.1984)....

...its contract with Automated and that Automated had incurred $72,100.00 in damages. 3 The district judge also concluded that Advanced's actions amounted to theft under Fla.Stat. Sec. 812.014 (1983) 4 and trebled the damages pursuant to Fla.Stat. Sec. 812.035(7) (Supp.1984)....

...he property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit therefrom. (b) Appropriate the property to his own use or to the use of any person not entitled thereto. 5 Section 812.035(7) provides: 812 035....

...n, is entitled to minimum damages in the amount of $200. Such person shall also recover court costs and reasonable attorneys' fees in the trial and appellate courts. 6 In addition, the court awarded Automated an attorney's fee apparently pursuant to section 812.035(7) 7 After careful examination of the record, we reject Automated's contention that the district court's failure to find that Advanced acted fraudulently was erroneous 8 We note that trebling Automated's damages in this case would have an anomalous result....

...It is true that this was less than the amount the contract specified. In finding that Advanced committed theft, however, the district court trebled not only the additional $4,924.25 Advanced should have tendered but also the $30,175.75 it did tender 9 The district court apparently relied on section 812.035(7) in awarding Automated an attorney's fee. As we hold section 812.035(7) inapplicable to the facts of this case, it follows that the court's award of the attorney's fee must be set aside 10 Under Florida law, money may be converted "so long as it consists of specific money capable of identification." Belford Trucking Co....

...Moreover, the letter is devoid of any language which would lead a reasonable person to conclude that the corporate officers were providing a personal guarantee for a preexisting corporate debt. Thus, the trial court correctly granted a directed verdict on this count. II. Appellants also sought damages against the Halls under section 812.035(7), Florida Statutes (1984), on the theory that the Halls had converted their money by refusing to collateralize the inventory of the marina store after receipt of over $60,000 from ASG....

...Corp., 465 So.2d 581 (Fla. 1st DCA 1985). Therefore, although the actual damages in this case as alleged are $3,974.25, the availability of the punitive damage claim satisfies the jurisdictional limits. The complaint also claims treble damages. At the time this case arose, Section 812.035(7), Florida Statutes (1985), provided: Any person who is injured in any fashion by reason of any violation of ss....

...[emphasis added] Effective October 1, 1986, that section was amended to limit the treble damages to the State or its agencies, etc., but at the same time Section 772.11, Florida Statutes, was amended to provide individual claimants with the remedy of treble damages which the new Section 812.035(7) deleted. Here, both the original sale and the return occurred prior to the amendment in October 1986, and therefore the treble damages were available under the prior version of Section 812.035(7). It should also be noted, however, that after 1984, individuals cannot recover both punitive damages and treble damages pursuant *874 to Section 812.035(7) or Section 772.11, Florida Statutes....

...Shortly thereafter, Gambolati filed a motion for attorney's fees incurred in successfully defending Sarkisian's civil theft claim. On June 16, 1992, the trial court filed a written order denying Gambolati's motion. The instant appeal followed. Gambolati asserts that he is entitled to attorney's fees pursuant to section 812.035(7), Florida Statutes (1991), as the prevailing party on Sarkisian's claim for civil theft. Section 812.035(7) provides in pertinent part that "[t]he defendant shall be entitled to recover reasonable attorney's fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim which was without substantia...

...or implied." Belford Trucking Co. v. Zagar, 243 So.2d 646, 648 (Fla. 4th DCA 1970). Consequently, Sarkisian's civil theft claim was without substantial legal support and the trial court erred in denying his motion for attorney's fees under sections 812.035(7) and 772.11, Florida Statutes (1991)....

...audulently converted, embezzled, misappropriated or otherwise improperly had transferred or dissipated from UPMI.” Nortman also requested a show cause order why Ott should not be found in violation of the Florida civil theft statute, Fla.Stat.Ann. § 812.035(7) (West 1984), and therefore liable for treble damages and attorney's fees....

...ith Rule 60(b).” Fed.R.Civ.P. 55(c). If Ott had used one of these procedural mechanisms, she would have had the opportunity, for instance, to present evidence contradicting Nortman’s affidavit or to argue that treble damages under Fla.Stat. Ann. § 812.035(7) were impermissible in her case....

...There was no further contact by the girlfriend with the car dealer or the car dealer with the girlfriend until after the car dealer resold the car to a third person. The girlfriend sued the car dealer for count I, common law fraud; count II, conversion (or civil theft under § 812.035(7), Florida Statutes (1985)); count III, unfair or deceptive trade practices (§ 501.204, et seq., Florida Statutes); count IV, violation of section 320.27, Florida Statutes; count V, breach of contract; and count VI, violation of Uniform Commercial Code section 679.502(2), Florida Statutes....

...y damages, $40,000 punitive damages; and as to count III, unfair trade practices — $1,500 compensatory damages. The trial court entered judgment for $4,500, being the $1,500 compensatory damages for conversion tripled under the civil theft statute (§ 812.035(7), Fla....

...The trial court also reserved jurisdiction to award attorney's fees. The car dealer appeals. While the caption of count II of the complaint is entitled "Count II — CONVERSION," the body states in paragraph 15 that this count is a cause of action pursuant to section 812.035(7), Florida Statutes....

...Allegations of that count in paragraph 17 essentially alleged a conversion, and paragraph 19 characterizes that conversion as having been done willfully, wantonly, and maliciously and/or done in gross and reckless disregard of plaintiff's rights. The prayer in count II is for treble damages under section 812.035(7), Florida Statutes, punitive damages, attorney's fees, etc. There is no separate count in the complaint based on a cause of action for conversion. There is a substantive difference between a civil cause of action for conversion and for a theft authorizing civil damages under section 812.035(7), Florida Statutes (1985)....

...Theft is not merely a conversion done in a gross and reckless manner as is inferred by paragraph 19 of count II of the complaint and paragraph 9 of the special verdict form. A finding of a civil conversion does not justify an award of treble damages under Florida's Antifencing Act statute, section 812.035, Florida Statutes (1985)....

...rial court gave a jury instruction as to count II that in effect required only a finding of conversion and did not require the jury to find the criminal intent that is necessary for civil *121 theft and treble civil damages and attorney's fees under section 812.035(7), Florida Statutes (1985)....

...The action was brought against a corporate employer and one of its non-managerial employees for acts of conversion committed by the said employee within the scope of his employment. The dispositive issue presented for review is whether a trial court is authorized under Section 812.035(7), Florida Statutes (Supp....

...II The sole point raised on the main appeal is the propriety of the trial court's post-trial order trebling the compensatory damages awarded by the jury as against the defendant McArthur Dairy. It is urged that the trebling of such damages is not authorized under Section 812.035(7), Florida Statutes (Supp....

...oration itself through, presumably, one of its managerial employees. To assess the merits of this contention, it is necessary to consult the general law on the assessment of treble damages for acts of conversion under the Florida Anti-Fencing Act. A Section 812.035(7), Florida Statutes (Supp....

...(b) Appropriate the property to his own use or to the use of any person not entitled thereto." Plainly, then, the victim of a theft or conversion of property, as here, has a civil remedy for treble damages under the above two statutes. Significantly, an earlier version of Section 812.035(7), Florida Statutes (1983), provided that punitive damages were also recoverable, in addition to treble damages, by the victim of a theft or conversion, to wit: "Any person who is injured in any fashion by reason of any violation of the provisions of ss....

...s for treble damages, plus punitive damages, upon the ground that treble damages are punitive in nature already and the combination of the two are necessarily duplicative as a punitive element, resulting in an excessive penalty. The bill would amend section 812.035(7), Florida Statutes, eliminating a civil award of punitive damages, while retaining an award for treble damages." It is therefore clear that the treble damage award provided under the amended version of Section 812.035(7), Florida Statutes *540 (Supp....

...1984), is in the nature of a punitive damage remedy as it allows the compensatory damages incurred by the victim of a theft or conversion to be increased three fold. Punitive damages, as such, are no longer permitted because they are plainly duplicative of the treble damages remedy. B Section 812.035(7), Florida Statutes (Supp....

...This being so and given the fact that the treble damages remedy is plainly a substitute for a punitive damages award, we must turn to the ordinary rules of civil liability relating to punitive damages in order to determine what party or parties are liable for treble damages under Section 812.035(7), Florida Statutes (Supp....

...First, the perpetrator of a theft or conversion is liable for punitive damages under ordinary rules of civil liability, see Smith v. Bagwell, 19 Fla. 117 (1882); Prosser and Keeton on Torts § 2, at 10-11 and cases collected at n. 41 (5th ed. 1984); he is therefore liable for treble damages under Section 812.035(7), Florida Statutes (Supp....

...Del Aguila, 417 So.2d 651, 652-53 (Fla. 1982); see also Prosser and Keeton on Torts, supra, § 2, at 13. The employer of the perpetrator of a theft or conversion is therefore vicariously liable under the same circumstances for treble damages under Section 812.035(7), Florida Statutes (Supp....

...Del Aguila, 417 So.2d at 652-53; see also Bankers Multiple Line Insurance Co. v. Farish, 464 So.2d 530, 533 (Fla. 1985); accord Winn-Dixie v. Robinson, 472 So.2d at 724. A corporate employer of the perpetrator of a theft or conversion is therefore liable under the same circumstances for treble damages under Section 812.035(7), Florida Statutes (Supp....

...In sum, the ordinary rules of civil liability for punitive damages, as stated above, are now applicable to the treble damage remedy provided for under the above statute. *541 C Finally, the law is clear that a jury is not authorized to award treble damages under Section 812.035(7), Florida Statutes (Supp....

...y within the scope of the employee's employment — and McArthur Dairy was plainly guilty of some fault which foreseeably contributed to the plaintiff's injury. This being so, the treble damage remedy was properly applied against McArthur Dairy under Section 812.035(7), Florida Statutes (Supp....

...1984), and McArthur Dairy's contention to the contrary must be rejected. The trial court in the post-trial order assessing treble damages correctly analyzed the issue before it as follows: "Plaintiff has sought to treble damages against both MIGUEL TEJEDA and McARTHUR DAIRY, INC. pursuant to Florida Statute 812.035....

...o take any steps to stop same evidence at the very least McARTHUR's tacit if not outright complicity in the theft problem, generally, and in this instance, specifically. Where an individual [d]efendant has committed theft pursuant to Florida Statute 812.035, and that said theft was committed during the course and scope of his employment and where the employer was specifically found to be responsible for said loss and theft to a degree equal to, or greater than that of the individual, it is appropriate to treble the damages against both the employee and employer....

...The directed verdict on this claim is reversed. CIVIL THEFT Tinwood paid $3,600,000 for the land. There is evidence that Figueredo obtained the property for a sum less that $3,600,000 but did not account to the corporation for the difference. Civil theft is recognized under section 812.035, Florida Statutes (1985)....

...denied, 494 So.2d 1151 (1986) and Futch v. Head, 511 So.2d 314 (Fla. 1st DCA 1987), rev. denied, 518 So.2d 1275 (1987), point out that a dispute over the amount of money that a person owes may justify a breach of contract action but does not become a theft which is actionable under section 812.035....

...Using $381,339.96 as the value gained by the offender, the Debtor faced fines of up to $1,143,509.90 for each of these counts. It appears that the maximum fines for all of *228 the counts, therefore, was $3,049,359.78. It further appears that Fla.Stat. § 812.035(1) empowers the State criminal court to restrict or terminate a business enterprise in the event of a conviction under Fla.Stat....

...icient to pay any part of this account. The plaintiff/trustee has therefore carried its burden of establishing the October 2 transfer to be avoidable. In count II, plaintiff claims he is entitled to treble damages and attorneys' fees under Fla.Stat. § 812.035(7), because 11 U.S.C....

...In this case however, because of the trial judge's worksheet, it is clear that he did not simply weigh the expert testimony. Instead the trial judge assessed the homeowners damages based upon the cost of their substitute rental home. The homeowners next contend that the trial court erred by dismissing their claim under § 812.035(7) Florida Statute (1985), [2] for the civil theft of doors which had been installed and thereby incorporated into the homeowners' property....

...red in favor of his estranged wife, Silvia Hasbun. Escudero claims that the lower court abused its discretion when it enjoined him from withdrawing, transferring or otherwise disposing of certain bank funds pursuant to Florida's Civil Theft Statute, section 812.035(6), Florida Statutes (1995)....

...For this reason, we agree with Hasbun that the issue of whether she can demonstrate the loss from the theft, which is separate and distinct from the loss flowing from the breach of the agreement, is immaterial. For all of these reasons, we affirm the order under review. Affirmed. NOTES [1] Section 812.035(6), Florida Statutes (1995) provides: (1) Any circuit court may, after making due provisions for the rights of innocent persons, enjoin violations of the provisions of ss....

...eroy Neiman lithograph. He told them the lithograph would be returned once the utility bills were paid. On September 10, 1982, Pelletier and Caputo filed a complaint against Paul Cutler, Beverly Cutler and Richard Emerson, alleging civil theft under section 812.035, Florida Statutes (1981), wrongful eviction and conversion....

...onversion. A jury found that Emerson's conversion was under the direction and control of Cutler and awarded both compensatory and punitive damages against both Cutler and Emerson. The trial court tripled the award of compensatory damages pursuant to section 812.035, Florida Statutes (1981)....

...as to the value of the Dali lithograph. Therefore, we reverse the award of compensatory damages, and remand for a proper assessment of damages. Finally, appellant asserts that the trial court erred in awarding both punitive and treble damages under section 812.035, Florida Statutes (1981)....

...We agree. Although the appellant did not raise this issue below, the error appealed affects fundamental rights and can be raised for the first time on appeal. See Abrams v. Paul, 453 So.2d 826 (Fla. 1st DCA 1983). At the time the complaint was filed, section 812.035(7), Florida Statutes (1981), specifically allowed for both treble and punitive damages. However, section 812.035(7) was amended to eliminate the award of punitive damages, and this amended version became effective October 1, 1984....

...rding to the law prevailing at the time of the appellate disposition. Lowe v. Price, 437 So.2d 142 (Fla. 1983). Thus, applying the correct law to the instant case, we find that the trial court erred in awarding both treble and punitive damages under section 812.035(7), Florida Statutes....

...(1987); fraud, four years from discovery, but not more than twelve years from violation §§ 95.031, 95.11(3)(j), Fla. Stat. (1987); breach of fiduciary duty, four years § 95.11(3)(p), Fla. Stat. (1987); negligence, four years § 95.11(3)(a), Fla. Stat. (1987); and civil theft, five years § 812.035(10), Fla....

...we *540 recount the factual setting forming the claims asserted against Stein or to detail each of the events associated with the trial. Following the filing of the amended complaint but before the commencement of the trial, the legislature amended section 812.035, which at the time this action began provided a cause of action and a civil remedy to "any person ......

...." The statute's amendment, effective October 1, 1986, eliminated reference to "any person" and confined the statutory civil action for damages to the "state, including any of its agencies, instrumentalities, subdivisions, or municipalities... ." The amendatory process relocated that aspect of section 812.035 conferring the ability of "any person" to pursue a civil theft claim to section 772.104 and elevated the standard of proof to the "clear and convincing" level....

...Against the foregoing backdrop, an appropriate basis for determining this matter is found in the Second District's recent opinion in Ziccardi v. Strother, No. 89-01538 (Fla. 2nd DCA May 18, 1990) [15 F.L.W. D1382]. The analysis in Ziccardi points up that the legislative modifications affecting sections 812.035(7) and 772.104 did not alter vested rights....

...Getelman moved to dismiss the breach of fiduciary duty claim on the ground that it was an element of the fraud claim. The trial court denied the motion. On the day the case was set for trial, a motion by Mr. Levey for leave to amend his complaint was heard. Mr. Levey sought to include a claim for treble damages under section 812.035(7), Florida Statutes (Supp....

...155, 81 So. 107 (1919); Southeastern Mobile Homes, Inc. v. Transit Homes, Inc., 192 So.2d 53 (Fla. 2d DCA 1966). [6] Mr. Levey next argues that the trial court erred in refusing to allow him to amend his complaint to include a claim for treble damages under section 812.035(7), Florida Statutes (Supp....

...ostponement of trial. See Costa Bella Development Corp. v. Costa Development Corp., 445 So.2d 1090 (Fla. 3d DCA 1984); Lasar Manufacturing Co. v. Bachanov, 436 So.2d 236 (Fla. 3d DCA 1983). Mr. Levey waived his right to bring a cause of action under section 812.035(7) when he chose to proceed immediately to trial rather than have the amendment....

...costs. When Tashea and Atlas failed to respond, Barbe proceeded on his crossclaim by filing a motion for entry of default judgment, alleging a violation of sections 812.014 and 812.012(2)(b), Florida Statutes, and claiming treble damages pursuant to section 812.035, Florida Statutes....

...Next, it is argued that, because judgment on the crossclaim awarded Barbe only punitive damages, he was not precluded by the doctrine of election of remedies from pursuing compensatory damages in the form of recovery of the yacht on his counterclaim. Judgment on the crossclaim was entered pursuant to section 812.035(7), Florida Statutes, which provides that one injured by a violation of sections 812.012-.037 "shall have a cause of action for threefold the actual damages sustained and, when appropriate, punitive damages," thus indicating that the treble damage award must be based on actual damages. See also Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) Ltd., 450 So.2d 1157 (Fla. 3d DCA 1984) (section 812.035(7) provides for tripling of actual damages awarded )....

...Therefore, a final judgment in the cause, under the jurisdictional provisions in effect at the time the notice of certiorari was filed, would have been appealable to this Court. We have jurisdiction, article V, section 3(b)(3), Florida Constitution (1972), and uphold the constitutionality of section 812.035, Florida Statutes (1977), [*] and approve the action of the court below....

...Based on evidence gathered during the investigation, the employee who had dealt with the agent was arrested and charged with grand theft in violation of section 812.014, Florida Statutes (Supp. 1978), which defines and prohibits "theft." Subsequently, on Friday, June 22, 1979, the state attorney, pursuant to section 812.035, filed a motion for equitable relief with the circuit court seeking to enjoin the operation of Roush's transmission repair business, to suspend his local business license, and to seize the property used in the business....

...At the conclusion of the hearing, the court enjoined Roush from operating his transmission business until further order and ordered the seizure of all real and personal property used in the business. By motion for rehearing, Roush raised the issues of the constitutionality of section 812.035 and the adequacy, under due process principles, of the notice provided him in this case....

...onstituted theft pursuant to the act and rendered Roush subject to the sanctions authorized by the act. Unlike many criminal statutes, the Florida Anti-Fencing Act provides civil remedies, as well as criminal penalties, for violations of the act. Subsection 812.035(5) specifically confers upon any state attorney the authority to institute civil proceedings in response to violations of the act....

...able relief with the circuit court, seeking imposition of the civil remedies provided by the act. In conducting a hearing on the Monday immediately following Roush's Friday receipt of service, the circuit court adhered to the dictate contained in subsection 812.035(5) that "the circuit court shall proceed as soon as practicable to the hearing" of actions brought under the section....

...(Emphasis supplied.) Although a weekend intervened between the service and hearing, the fact remains that the court followed the clear command of the section. And, just as the court's timing of its adjudication complied with the act, so too did the court's imposition of civil remedies. Subsection 812.035(5) provides that "[p]ending final determination, the circuit court may at any time enter such injunctions, prohibitions, or restraining orders, or take such actions, ... as the court may deem proper." Further, the court may order the seizure of all property subject to forfeiture under section 812.035. § 812.035(3), Fla. Stat. (1977). Subject to forfeiture is "[a]ll property ... used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation" of the act. § 812.035(2), Fla. Stat. (1977). Consequently, "after making due provisions for the rights of innocent persons" (subsection 812.035(1)), the circuit court had at its disposal a wide range of civil remedies with which it could prevent further violations of the act by Roush....

...the time to mount an adequate defense to the charges facing him, deprivations tantamount to infringements on his procedural due process guarantees. As noted, however, the court's timing of its hearing was in response to the directive contained in subsection 812.035(5) that actions brought under the section "shall proceed as soon as practicable." Given the remedial nature of the act (section 812.037), we find nothing unreasonable about this directive and believe the circuit court was justified in...

...the court's denial of the motion for continuance and rehearing. Having disposed of Roush's procedural argument, we turn to the issue of whether the civil remedies imposed by the court in any way violated his substantive due process rights. As noted, section 812.035 gives the circuit court the discretionary power to order a number of harsh civil remedies, including injunctions, divestitures, restraining orders, forfeitures and seizures — all of which can be imposed in the absence of a criminal conviction. As with any discretionary power, the possibility of abuse is ever present. Clearly, a court must be extremely cautious and circumspect in exercising the broad powers conferred by the act. As dictated by subsection 812.035(1), however, a circuit court may act only "after making due provisions for the rights of innocent persons." As earlier demonstrated, the circuit court gave Roush every opportunity to establish his innocence at the hearing....

...The record offers no evidence that the court took steps to impose forfeiture, the strictest civil remedy provided by the act, and we have no occasion to consider the constitutional ramifications had the court chosen to order forfeiture. We find nothing unconstitutional about section 812.035....

...The authorized civil sanctions provide the state with an effective tool to halt the continuing harmful effects of those activities. Further, the civil remedies benefit aggrieved citizens, affording them the incentive to pursue claims for loss caused by various forms of theft. Accordingly, we hold that section 812.035, Florida Statutes (1977), is constitutional both on its face and as applied in this case, and we affirm the action of the circuit court....

...BOYD, Justice, dissenting. I dissent for several reasons. The first ground, which I discuss first because we *22 should if possible avoid a statutory construction requiring a holding of unconstitutionality, is that the Court errs in giving effect to the literal words of section 812.035 when such effect is clearly at variance with the legislative intent. The face of the statute demonstrates an ambiguity requiring judicial construction. While the literal language of the statute is susceptible of application to all forms of the new broadly defined crime of theft, the act of which section 812.035 is a part is denominated "The Florida Anti-Fencing Act." § 812.005, Fla....

...by the state because one dishonest employee has cheated some customers even without the knowledge of the managers or owners. I do not think the legislature intended such results, but if it did then the statute is clearly unconstitutional. NOTES [*] 812.035 Civil remedies; limitation on civil and criminal actions....

...Florida Constitution. Therefore, King Kole, Inc. v. Bryant, 178 So.2d 2 (Fla. 1965), cited by the Court, is inapposite. The designation is, however, part of the statute and is one of the things we must look at in determining legislative intent. [2] Section 812.035 was enacted when the 1977 legislature passed and the governor approved the Committee Substitute for Senate Bill No....

...ng the allegations. Raney v. Jimmie Diesel Corp., 362 So.2d 997, 998 (Fla. 3d DCA 1978); accord, Connelly v. Merritt, 273 So.2d 7, 8 (Fla. 1st DCA 1973). Count II purports to state a statutory cause of action for treble damages for theft pursuant to Section 812.035(7), Fla....

...fficer Alberto Duque, the Credit Bureau, Inc., and TRW Credit Data conspired to violate plaintiff's rights under the Civil Rights Act, 42 U.S.C. §§ 1983 and 1985 (1980), the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and Florida statute § 812.035(7) (1976)....

...Friedman of Friedman, Oshinsky & Krulewitz, P.A., Hallandale, for appellant. Elaine M. Gatsos of Law Office of Elaine M. Gatsos, Boca Raton, for appellee-Lauderdale Medical Equipment Service, Inc. WARNER, Judge. The appellant challenges an order of the trial court refusing to award him attorney's fees under section 812.035, Florida Statutes (1989)....

...of proof. See Lewis v. Heartsong, Inc., 559 So.2d 453 (Fla. 1st DCA 1990). However, the case went to the jury on the third claim, and a judgment was rendered against appellant on that count. The appellant moved to assess attorney's fees pursuant to section 812.035(7) on the ground that, based on the directed verdicts, appellee's civil theft claim was "without substantial fact or legal support." The trial court denied the award, finding that because there was an award on one other claim (the con...

...Therefore, the claim of civil theft was by definition without any factual evidentiary support, let alone substantial fact, because it was missing an essential element of the claim. That other facts may justify recovery on other claims does not vitiate the appellant's entitlement to attorney's fees under section 812.035(7) or section 772.11 which both require only that the appellant prove that the civil theft claim is without substantial factual or legal support....

...If this were an award under section 57.105, the trial court's ruling would be appropriate because that statute requires that the entire action show a complete absence of any justiciable issue. Here, of course, there were justiciable issues. But sections 772.11 and 812.035 are claim specific....

...to the bank account of the defendant corporation; that the corporation, through the individual defendant, as its president, had refused to return the funds and thereby converted them and in fact by their conversion and refusal the defendants were guilty of a theft under § 812.035 Florida Statutes (1979). The complaint sought punitive damages, as well as treble damages pursuant to § 812.035; Florida Statutes (1979), and demanded a jury trial....

...Gladfelter, 160 So.2d 740 (Fla. 3rd DCA 1964), affirmed; Gladfelter v. Loiselle 165 So.2d 767 (Fla. 1964). Fla.R.Civ.P. 1.430(d). In oral argument counsel touched on the question of whether treble damages could be recovered in the trial court under Section 812.035(7) without proof of a prior criminal conviction....

...; the Section not having heretofore received judicial scrutiny. After the trial court makes a ruling on this point, any aggrieved party may make a point in subsequent appellate proceedings as to the correctness of the trial judge's interpretation of Section 812.035(7)....

...PEARSON, Judge, concurring. I agree that the defendant is entitled to have the judgment against it set aside and the cause remanded to the trial court for a trial on damages. I believe, however, that since the trial court awarded treble damages under Section 812.035(7), Florida Statutes (1979), and the parties hereto made the propriety of that award a separate issue on appeal, we should reach the question whether treble damages can be awarded upon proof that the civil defendant violated the theft statute, §§ 812.012 et seq., Fla....

...(1979), absent proof that the violation resulted in a criminal conviction. Addressing this question, I find nothing at all in Chapter 812 which even slightly suggests that a conviction for any of the thefts proscribed in this chapter is a necessary predicate to the civil remedies provided by Section 812.035. Indeed, a plain reading of Section 812.035 compels the contrary conclusion....

...ny criminal sanction. Had the legislature intended that the civil remedies provided could only be employed following a criminal conviction, I think that intent, so easily expressed, would not only appear in but would drastically alter the purport of Section 812.035....

...tion for judgment which was bare of any legal discussion. Since we are reversing and remanding for a full trial on damages I think it unnecessary to pass on the question whether a conviction is a necessary predicate to the civil remedies provided by Section 812.035, Florida Statutes (1979)....

...The trial court granted the motion and this appeal follows. First, the applicable statute of limitations for grand theft is not the three-year statute under Section 775.15(2)(b), Florida Statutes (1981), but, as the Fifth District has recently held, the five-year statute under Section 812.035(10), Florida Statutes (1981), which is made specifically applicable to all theft prosecutions notwithstanding any other contrary statute. State v. Bare, 473 So.2d 799 (Fla. 5th DCA 1985). Section 812.035(10), Florida Statutes (1981) reads in pertinent part as follows: "Notwithstanding any other provision of law, a criminal ......

...denied, 177 So.2d 476 (Fla. 1965). It follows, then, that the prosecution herein was properly commenced within five years after November 8-12, 1980, the dates of the alleged crime of grand larceny, and, therefore, the instant prosecution was not time-barred under Section 812.035(10), Florida Statutes (1981)....

...1986), granted a judgment on the pleadings in favor of appellees on the civil theft count. It is true that Rosen did hold: ... that recovery of damages for breach of contract will not support a trebling of *627 such damages pursuant to the provisions of Section 812.035(7), Florida Statutes (Supp....

...1971); Perry v. Cosgrove, 464 So.2d 664 (Fla. 2d DCA 1985). Tourismart's claim for treble damages, however, must fail. The claim for treble damages is made in the complaint based upon Gonzalez' alleged violation of section 832.05, Florida Statutes (1983). Section 812.035(7), Florida Statutes (1983), allows persons suffering *471 injury to bring an action for treble damages only if the injury results from a violation of the provisions of sections 812.012-.037 or section 812.081. Since section 812.035(7) may not be used in conjunction with the statute allegedly violated in the present case, Tourismart is not entitled to treble damages based upon its complaint....

...roperty and appropriate it to his own use knowing that he was not entitled to do so. See section 812.014(1), Florida Statutes. Although intent may be shown by circumstantial evidence, civil theft must be established by clear and convincing evidence. Section 812.035(7)....

...Therefore, upon remand, the new trial motion remains pending. Nothing contained in this opinion shall be construed as limiting the trial court's own evaluation of the record with respect to the new trial motion. GARRETT and FARMER, JJ., concur. NOTES [1] Section 812.035(7) which previously applied to "any person," now applies only to the state and its agencies....

...(emphasis supplied). The appellant has not demonstrated any other error with regard to the trial on the issue of civil theft, so no new trial is warranted on that issue. Therefore, the appellant is not entitled to any award of attorney's fees under section 812.035(7), and the motion for such fees is denied....

...The cause is remanded for a new trial on the issues of replevin and conversion, and for further proceedings consistent with the principles expressed herein. AFFIRMED in part, REVERSED in part and REMANDED. COBB, C.J., and FRANK D. UPCHURCH, Jr., J., concur. NOTES [1] The civil theft count was based on section 812.035(7), Florida Statutes (1981), which says: Any person who is injured in any fashion by reason of any violation of the provisions of ss....

...The evidence does show that Davis mismanaged his business affairs, however, this is not equivalent to wrongful intent, and no grounds for an exception to discharge are present. The plaintiffs have an additional claim for civil theft citing Florida Statute § 812.024, and are seeking treble damages pursuant to Fla.Stat. § 812.035(7)....

...In December 1985, the Debtors sued the Plaintiffs, CASI and Wynne, for fraud in the Circuit Court of Orange County, Florida. Plaintiffs counterclaimed against the Debtors on the promissory note given by Debtors, for conversion, civil theft under Fla.Stat. § 812.035(7), foreclosure and interference with ability to contract....

...While it appears the Circuit Court found the jury verdict to be against the Debtors as to civil theft, the record before this Court is unclear as to that jury finding. Nonetheless, the state trial court entered a final judgment on October 15, 1986, trebling the damages established by the jury. See Fla.Stat. § 812.035 (1985)....

...ility of that state court judgment. The gravamen of the Plaintiffs' Complaint is that the Defendants' sale of inventory, goods and equipment as alleged in the state court action constituted civil theft under Fla.Stat. § 812.014(1), the successor to § 812.035(7)....

...ority, in issuing the bonds. Thus, the statute of limitations expired as to Counts 4 and 5. In Counts 11 and 12 of the indictment, the state asserts that petitioner committed grand theft. The statute of limitations for grand theft is five years. See § 812.035(10), Fla....

...e, the portions of the judgment awarding damages to appellee of $56,300 and punitive damages in the total amount of $22,500, and denying recovery to appellants on the note and mortgage are affirmed. The award of damages to appellee for civil theft, (section 812.035(7), Florida Statutes (1983)), however, cannot stand because it is wholly unsupported by the evidence....

..., Architect Lee Scarfone Associates ("ALSA"), alleging breach of contract, fraud, violations of federal and state racketeering statutes ("RICO"), 18 U.S.C. § 1961 et seq.; Fla. Stat. § 895.01 et seq., and the Florida civil theft statute, Fla.Stat. § 812.035....

...laintiff —is insufficient to state a civil RICO claim. Anitora Travel, Inc. v. Lapian, 677 F.Supp. 209, 216 (S.D.N.Y.1988). Since the provisions of the Florida RICO and civil theft statutes applicable to this lawsuit, Fla.Stat. § 895.05(7) (1984), 812.035(7) (Supp.1984), track the federal provision thereby making this rationale applicable to those claims as well as the claim based upon the federal RICO statute, this argument must fail as a valid ground to alter or amend the judgment....

...r powers. Section 682.13(1)(c), Florida Statutes (1983), requires an award to be vacated when an arbitrator exceeds his powers in the course of his jurisdiction. IMC cites as an abuse of powers the arbitrators' consideration of Sabates's claim under section 812.035(7), Florida Statutes (1983), a part of the Florida Civil Theft Statute....

...in prosecuting the Defendant was unreasonable. The statute of limitations for the charged offense has expired." The statute of limitation that applies to the charge filed against Shamy provides that prosecution must be "commenced" within five years. § 812.035(10), Fla....

...See Brown, 674 So.2d at 741 (holding the defendant may not be deprived of the benefit of the statute of limitations). Statutes which affect substantive rights are presumed to operate prospectively absent clear legislative intent to the contrary. State v. Lavazzoli, 434 So.2d 321, 323 (Fla.1983). Here, under sections 812.035(10) and 775.15(5), Florida Statutes (1989), [2] Shamy's right to be protected from prosecution vested before the amendment became effective....

...2d DCA 1990) (finding that the Civil Remedies for Criminal Practices Act was remedial in nature); Stuart L. Stein, P.A. v. Miller Indus., Inc., 564 So.2d 539 (Fla. 4th DCA 1990); Senfeld v. Bank of Nova Scotia Trust Co., 450 So.2d 1157, 1165 (Fla. 3d DCA 1984) (finding that the prior version of the civil theft statute, then section 812.035, was remedial in nature); cf....

...First, and most obviously, had the Florida Legislature intended to confer such a right, it could have expressly done so in the same manner as other states, see, e.g., Ala. Code § 6-5-285 (1975); Miss. Code Ann. § 11-7-12 (1972), as it has seen fit to do in respect to other crimes, see, e.g., § 812.035, Fla....

...ers and judgments, including but not limited to the orders enumerated in sections 895.05(1)(a)-(e). That section applies not only to permanent injunctions, but also to temporary injunctions. [2] See Roush v. State, 413 So.2d 15 (Fla. 1982) (applying section 812.035(1), Florida Statutes (1977), which is identical to section 895.05(1)); Finkelstein; Hudson Nat'l Bank v....

...StreamlineMD's information management system. Id. at ¶¶ 56-59 . In Count IV, SJVC alleges that all the Defendants (i.e., the StreamlineMD Defendants and CVDJBA) stole SJVC's trade secrets in violation of *1056 Florida Statutes sections 812.081 and 812.035....

...SJVC also argues that in its SA Complaint it has sufficiently alleged that CVDJBA, through the actions of Heinz in conjunction with the StreamlineMD Defendants, stole its trade secrets. Id. at 14-17 . However, in response to CVDJBA's contention regarding attorney's fees, SJVC "acknowledges that a violation of section 812.035(1) does not provide for an award of attorneys' fees," id....

...Forgery is an offense under section 831.01 and dealing in stolen property is an offense under section 812.019. The three-year statute of limitations applies to the forgery charge, but the state has five years to prosecute the charge for dealing in stolen property. § 812.035(10), Fla....

...We agree with the appellee that the trial court properly entered a final summary judgment upon a holding that there is no evidence which would establish criminal intent under section 812.014(1), Florida Statutes (1983), in order to support this civil theft action under section 812.035(7), Florida Statutes (1983)....

...interrogatories and the subsequent final judgment from the prior district court proceedings. In that case, the jury found Mr. and Mrs. Latch guilty of theft as defined in Fla.Stat.Ann. § 812.014 and awarded treble damages pursuant to Fla.Stat.Ann. § 812.035(7)....

...Appellant contends that the treble damage award is conclusive proof of the "willful and malicious injury" element. This award was based on the jury's finding that Mr. and Mrs. Latch had violated Florida's theft statute. See 22A Fla.Stat.Ann. §§ 812.104, 812.035....

...h intent to either temporarily or permanently: (a) deprive the other person of a right to the property or a benefit therefrom. (b) appropriate the property to his own use or the use of any person not entitled thereto. Similarly at the time of trial, Section 812.035 provided in pertinent part: (7) Any person who is injured in any fashion by reason of any violation of provisions §§ 812.012.037 shall have a cause of action or three-fold the actual damages sustained, and, when appropriate, punitive damages....

...Punitive Damages—$80,000. This appeal and cross-appeal ensued. We find no error in the trial court's computation of damages except that, as Greenberg recognizes, he cannot recover both punitive damages and the $72,000 trebled civil theft award. See § 812.035(7), Fla....

...Hence, the award cannot be supported on the basis of section 57.105. See Muckenfuss v. Deltona Corporation, 508 So.2d 340 (Fla. 1987); Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla. 1982). The appellees also suggest the award may be sustained on the basis of section 812.035(7), Florida Statutes (1987), [1] the civil theft statute, at least in regard to the defendants other than Marlow....

...Corp., 667 F.Supp. 802 (M.D.Fla.1987) the plaintiffs claimed civil theft for the defendants knowingly obtaining of the plaintiff's monthly payments for their investment contracts. In determining whether the defendants had committed civil theft, the court construed § 812.035(10), Florida Statutes (1985), a predecessor to § 772.17, which provided a five year limitations period after the cause of action accrued....

...he injury first occurred—when the plaintiffs made the first payments to the defendants or contracted to do so. Id. The fact that Armbrister construed a predecessor statute to § 772.17 is inconsequential as the language of § 772.17 mirrors that of § 812.035(10) as both provide that suit must be commenced within five years after the cause of action accrues while § 772.17 provides an alternative time for the statute to run—when the conduct terminates....

...ft count. He also asked for fees and costs based on Gilman's alleged unreasonable refusal of a settlement *1134 offer under section 45.061, Florida Statutes (1987). The trial court granted the motion for fees and costs under the civil theft statute, section 812.035(7), but denied the motion based on the refusal of settlement....

...THE CLAIMS AGAINST IRA KAUFMAN The judgment against Gilman and in favor of Kaufman is affirmed in part and reversed in part. The following causes of action were properly summarily resolved adverse to Gilman: 1. Violation of sections 812.012 and 812.014, Florida Statutes, brought under section 812.035, Florida Statutes (1985) ("civil theft") — see Rosen v....

...hat he would make arrangements to cover it. Payment was never made to Southeast Bank on the overdraft. It filed the instant action seeking damages for breach of contract against American and triple damages against Brumlik for civil theft pursuant to § 812.035(7), Florida Statutes (1981)....

...[2] Brumlik was found to "knowingly obtain or use or endeavor to obtain or use the property of the Plaintiff in the form of cash in the sum of $17,379 with the intent to permanently deprive the Plaintiff of its right to said property ... as prohibited by Florida Statute 812.014," [3] and "that pursuant to Florida Statute 812.035 Plaintiff is entitled to recover threefold the actual damages which is $17,379.00, attorneys fees and costs of this litigation"....

...eprive the other person of a right to the property or a benefit therefrom. (b) To appropriate the property to his own use or to the use of any person not entitled thereto. * * * * * * [2] The amount of the check of $17,379 plus interest charges. [3] 812.035 Civil Remedies; Limitation on Civil and Criminal Actions....

...The trial court dismissed one of the grand theft charges because the information was filed after the expiration of the statute of limitations. We affirm the dismissal because the tolling provision in section 775.15(6), Florida Statutes (1983), does not apply to the five-year statute of limitations for theft. § 812.035(10), Fla....

...The information charged the defendants with grand theft for an alleged offense on April 8, 1983. The information was filed on December 20, 1988, five years and eight months after the alleged offense. The state admits that this offense is governed by the five-year statute of limitations established in section 812.035(10), Florida Statutes (1983), rather than by the three-year period established in section 775.15(2)(b), Florida Statutes (1983)....

...xtend the period of limitation otherwise applicable by more than 3 years. The state argues that this tolling provision applies not only to the general periods of limitation provided in section 775.15, but also to the more specific period provided in section 812.035(10). We cannot accept this argument. Section 812.035(10) provides a five-year period for both criminal and civil theft actions "[n]otwithstanding any other provision of law." The statute contains its own tolling provisions and does not expressly adopt the tolling provision in section 775.15(6). Section 812.035 does not require a strict construction but is to be construed in light of its remedial goal....

...On remand, the trial court shall perform its ministerial act of calculating the proper amount of treble damages and enter a judgment for that amount. See McArthur Dairy, Inc. v. Original Kielbs, Inc., 481 So.2d 535, 541 (Fla. 3d DCA *1248 1986) ("[T]he law is clear that a jury is not authorized to award treble damages under Section 812.035(7), Florida Statutes (Supp....

...[1] The state, on the other hand, contends that Wells is clearly erroneous and that section 775.15(2)(b), a general statute, does not apply. It contends that grand theft prosecutions are controlled by the more specific statute of limitations found in section 812.035(10), which provides: Notwithstanding any other provision of law, a criminal or civil action or proceeding under ss....

...dance with section 775.15. That assumption was wrong, and we hereby recede from the language in Wells which indicated that the statute of limitations for the prosecution of grand theft is three years. The correct period is five years as indicated by section 812.035(10)....

...felony, life felony or felony of the first degree. Bare was charged with grand theft in violation of section 812.014(2)(b), Florida Statutes, which provides for grand theft of the second degree, a third-degree felony. The state argues, however, that section 812.035, Florida Statutes (1983), supersedes this statute of limitations. Section 812.035 provides, in pertinent part: Civil remedies; limitation on civil and criminal actions....

...The state argues that since this section applies to both civil and criminal proceedings, and clearly states that it will apply "notwithstanding any other provision of law," it supersedes section 775.15(2)(b). There are no cases discussing this argument. A plain reading of the statute supports the state's argument. Although section 812.035 generally deals with civil remedies such as forfeiture and private civil actions, it does not appear that there could be any other reasonable way to interpret subsection (10)....

...d fraud contrary to Florida Rule of Civil Procedure 1.120(b); 7) statute of frauds; 8) failure to state a cause of action for an accounting; 9) failure to state a cause of action for equitable relief; and 10) failure to state a cause of action under section 812.035, Florida Statutes (1997), pertaining to civil theft....

...ZKE brought this lawsuit for declaratory relief (Count I), accounting (Count II), breach of contract (Count III), unjust enrichment (Count IV), constructive trust (Count V), civil theft (Count VI), temporary and permanent injunction under Fla. Stat. 812.035(1) (Count VII), conversion (Count VIII), and violation of the Uniform Fraudulent Transfers Act (Count IX)....

...We affirm, but for a different reason from that upon which the trial court relied in denying the claim, namely: Plaintiff's claim for statutory theft against all Defendants is rejected on the facts presented as the Defendants did not intend to permanently deprive Plaintiff of any of its property. The statute involved is Section 812.035(7), Florida Statutes (1983) pursuant to *250 which the plaintiff sought treble damages because of the defendants' alleged civil theft....

...Perez's] absence from the state in and of itself tolls the limitations period." We cannot agree. Accordingly, we affirm. The State filed an information on November 27, 2002, alleging that Ms. Perez committed grand theft between May 1 and August 31, 2000. A capias issued. Section 812.035(10), Florida Statutes (2000), is the statute of limitations for theft. State v. Telesz, 873 So.2d 1236, 1237-38 (Fla. 2d DCA 2004) (reiterating that the specific provisions of section 812.035(10) control for grand theft charges instead of the general five-year statute of limitations for third-degree felonies outlined in section 775.15); see also Brown v....

...2d DCA 1995) (explaining that statutes of limitation that apply are those that were in effect at the time of the incidents giving rise to the criminal charges), superseded by statute on other grounds as stated in State v. Paulk, 946 So.2d 1230, 1231 (Fla. 4th DCA 2007). Section 812.035(10) provides a five-year limitations period. That period can be extended for no more than one year should a defendant be continuously absent from the state. § 812.035(10)....

...The capias must be executed without unreasonable delay. § 775.15(5)(b), (6), Fla. Stat. (1999). The capias here was issued within the limitations period but was not executed until September 9, 2010, almost eight years after the State filed the information. See § 812.035(10); Brown, 674 So.2d at 741 n. 2. At the hearing on her motion to dismiss, Ms. Perez conceded that the State was entitled to a six-year limitations period allowed by section 812.035(10) due to her absence from Florida. Thus, the limitations *308 period would have expired at the end of August 2006. The State urges us to bootstrap the general provisions of section 775.15(5)(b) and (6) [1] onto the specific provisions of section 812.035(10) to toll the limitations period automatically and indefinitely due to Ms....

...not been arrested due to his or her absence from the state or has not been extradited for prosecution from another state. Nothing in section 775.15 suggests that it supersedes or adds to the specific limitation provisions for grand theft provided in section 812.035(10). We have recognized that a more specific statute controls over a more general statute. Telesz, 873 So.2d at 1237-38 (holding that section 812.035(10) takes precedent over section 775.15 in theft cases and citing collection of authorities); State v. Guthrie, 567 So.2d 544, 545 (Fla. 2d DCA 1990) (rejecting argument that section 775.15 tolling provision applies to the more specific provision in section 812.035(10) and noting that the latter statute specified that its statute of limitations controls "notwithstanding any other provision of law"); see also Schuster v....

...5th DCA 2009) (reversing denial of motion to dismiss grand theft charge on statute of limitations grounds; specific statute of limitations for theft controlled over more general limitation provisions for prosecution of crimes). Thus, sections 775.15(5) and (6) yield to section 812.035(10), and the State was limited to a maximum limitations period of six years....

...agreement. This complaint was ultimately met by an answer and a counterclaim, alleging a breach of management agreement, and sought damages for breach of contract, for breach of fiduciary relationship, for conversion, and treble damages pursuant to Section 812.035(7), Florida Statutes (1985)....

...invoices for payment issued to the county between July 7, 1994, and May 22, 1995. The defendant successfully moved to dismiss the charges on twenty-two of the invoices which were beyond the five-year statute of limitations *467 for grand theft. See § 812.035(10), Fla....

...The State was permitted to amend the information to make reference only to the last invoice, dated May 22, 1995, which remained within the five-year statute of limitations under an earlier agreement by the parties to toll the statute of limitations on or about May 17, 2000. However, the State chose to appeal the dismissal. Section 812.035(10) provides that notwithstanding any other provision of law, a criminal or civil action for grand theft may be commenced any time within five years after the cause of action accrues....

...erial allegedly delivered and installed at Crandon Gardens and at adjacent medians in Crandon Park.... to MIAMI-DADE COUNTY.... for payment and GUILLERMO ANTONIO CUTIE approving said invoices *468 for payment, in violation of s. 812.014(1)(2)(a) and s. 812.035 and s....

...Twenty two (22) of the invoices were submitted, and payment was received by Diaz, before May 17, 1995. Thus, the only fraudulent invoice submitted within the 5 year statute of limitations was the last invoice, which was submitted on May 22, 1995. . . . . RELEVANT STATUTES Florida Statute § 812.035(10) provides: Notwithstanding any other provision of law, a criminal .......

...However, the record reflects that Schuster was not arrested until she learned of the outstanding capias and turned herself in more than seven years later, on October 28, 2008. The crime charged is subject to a five-year statute of limitations. See § 812.035(10), Fla....

...State, 352 So.2d 853 (Fla.1977). See also Sherrod v. Franza, 427 So.2d 161 (Fla.1983) (prohibition is an appropriate remedy for violation of our speedy trial rule). We grant the petition. Prosecution for grand theft, a third degree felony, must be commenced within five years. § 812.035(10), Fla....

...The county court dismissed the information based on the expiration of the two-year statute of limitations in section 775.15, and the circuit court affirmed the dismissal. Section 775.15(2)(c) provides that prosecution for a misdemeanor of the first degree must be commenced within two years after it is committed. However, section 812.035(10), Florida Statutes (1997), provides that, "[n]otwithstanding any other provision of law," a criminal proceeding under sections 812.012-812.037 or section 812.081 may be commenced at any time within five years after the cause of action accrues. We conclude that section 812.035(10) must be applied to the crime of petit theft, as its language specifically encompasses the petit theft statute....

...J.M., 824 So.2d 105, 112 (Fla.2002) (noting the "long-recognized principle" of statutory construction that a more specific statute will control over a more general statute). Although Telesz notes that there are no district court decisions involving this issue, several districts have held that section 812.035(10), instead of section 775.15, applies to the offense of grand theft. We find these cases persuasive because grand theft, like petit theft, is defined in section 812.014. In Franklin v. State, 505 So.2d 1118, 1119 (Fla. 2d DCA 1987), this court determined that the offense of grand theft is controlled by section 812.035(10), "which provides a five-year statute of limitations in cases of theft instead of the general three-year statute of limitations for third degree felonies" outlined in section 775.15. In State v. Guthrie, 567 So.2d 544, 545 (Fla. 2d DCA 1990), this court noted that section 812.035(10) specifically provides that its statute of limitations controls "[n]otwithstanding any other provision of law" and held as follows: Section 812.035 does not require a strict construction but is to be construed in light of its remedial goal....

...Accordingly, we do not believe the legislature has authorized the state to apply section 775.15(6) to the special statute of limitations for theft. See also Williams v. State, 707 So.2d 897 (Fla. 2d DCA 1998). Several other district courts have held that section 812.035 takes precedent over section 775.15 in grand theft cases. State v. Hampton, 692 So.2d 278, 279 (Fla. 5th DCA 1997) (holding that the more specific five-year statute of limitations period in section 812.035 applied to grand theft rather than the more general statute, section 775.15); O'Malley v....

...4th DCA 1991) (concluding that the statute of limitations for grand theft is five years); State v. Chacon, 479 So.2d 229, 230 (Fla. 3d DCA 1985) (ruling *1238 that the applicable statute of limitations for grand theft is the five-year statute under section 812.035(10), "which is made specifically applicable to all theft prosecutions notwithstanding any other contrary statute"), reversed on other grounds, State v. Fields, 505 So.2d 1336 (Fla.1987); State v. Bare, 473 So.2d 799, 800 (Fla. 5th DCA 1985) (concluding that the statute of limitations period in section 812.035(10) supersedes section 775.15(2)(b)). We note that there is no language in section 812.035(10) or section 775.15 which would suggest that the limitations provision should apply differently to petit theft than it does to grand theft. Therefore, in cases involving petit theft the five-year statute of limitations period in section 812.035(10) controls, and the circuit departed from the essential requirements of law by holding to the contrary....

...The Applicable Statute The complaint contains no reference to any of the ten statutory grounds to except claims from discharge. 11 U.S.C. § 523(a). It alleges the foregoing facts in detail, then makes reference to Florida's Omnibus Theft Statute, Fla.Stat. § 812.035(1), and charges that the debtor's conduct "constitute[s] civil theft." (CP 1)....

...roperty and appropriate it to his own use knowing that he was not entitled to do so. See section 812.014(1), Florida Statutes. Although intent may be shown by circumstantial evidence, civil theft must be established by clear and convincing evidence. Section 812.035(7)....

...Id. at 437. In Perez, the Second District, in construing a different statute, held that the defendant’s absence from the state did not toll the five-year grand theft statute of -9- limitations under section 812.035(10), Florida Statutes (2000).4 In so holding, the Second District refused to “bootstrap the general provisions of section 775.15(5)(b) and (6) onto the specific provisions of section 812.035(10) to toll the limitations period automatically and indefinitely due to Ms. Perez’s out-of-state status.” Perez, 72 So. 3d at 308. The Second District reasoned in Perez that “[n]othing in section 775.15 suggests that it supersedes or adds to the specific limitation provisions for grand theft provided in section 812.035(10),” and that the specific statute controls over the general....

...This latter comment, although it deals with executing a capias and not with the statute of limitations time period, as well as the Second District’s citation to Netherly, suggest the court concluded that even if the tolling provisions of section 775.15 could be bootstrapped onto section 812.035(10), the tolling would not apply because the State did not act diligently in 4. In his initial brief, Robinson concedes that Perez may be distinguishable because the statute of limitations primarily being construed in Perez was section 812.035(10), Florida Statutes, which is specifically applicable to theft....

time-share units." Count five is an action under section 812.035, Florida Statutes, for triple damages, punitive

diligent in its efforts to serve the capias. Section 812.035(10), Florida Statutes (1995), is the statute

contained in chapter 812, Florida Statutes (2000). Section 812.035(10) provided, in pertinent part, that “the

civil theft (count II) against the city under section 812.035(7), Florida Statutes (1987). Springer v. Florida

A/J in violation of section 812.035 of the Florida Statutes (1985).[2] Section 812.035 provides: 812.035

Statutes (2001), and the defendant, pursuant to Section 812.035(7), Florida Statutes (2001). As to the opposing

compensatory damage award pursuant to Fla.Stat. § 812.035(7), the court refused also to award punitive damages

treble damages under the civil theft statute, section 812.035(7), Florida Statutes (1987). We answer both

775.15(2)(b), Fla. Stat. (1995). However, section 812.035(10), Florida Statutes (1995), provides that

breach of contract, negligence, violation of Section 812.035(7), Florida Statutes, and common law fraud

constitute a violation of the civil theft statute, section 812.035, Florida Statutes (1983). Since the parties'

the five-year statute of limitations under section 812.035(10), Florida Statutes (2005). In his motion

expired and the date prosecution commenced. Section 812.035(10), Florida Statutes (2000), established a

five-year statute of limitations set forth in section 812.035(10) was applicable because it was more specific

treble damages under Fla.Stat. § 812.014 and § 812.035(7), which provide a civil remedy for theft. Neither

award of attorney’s fees was based solely on section 812.035(7), Florida Statutes, a part of the civil theft

for grand theft be commenced within five years. § 812.035(10), Fla. Stat. (1989) (“a criminal proceeding

five year statute of limitations pursuant to section 812.035(10), Florida Statutes (1985), and that the

or two year period cited by the parties. See § 812.035(10), Fla. Stat. (1993); State v. Telesz, 873 So

amended version of the civil theft statute, section 812.035(7), Florida Statutes (Supp.1984). The award

barred by the applicable statute of limitation, section 812.035(10), Florida Statutes (1989) because, due to

without substantial fact or legal support.” Id. § 812.035(7).* However, on the merits the statutory standard

the 5-year statute of limitations had expired. § 812.035(10), Fla. Stat. (2005). He added that he has been

of a conveyance to file criminal charges. Section 812.035(10) allows five years within which the state

dissolution of the defendant corporation pursuant to section 812.035, Florida Statutes (1989), which provides civil

five-year statute of limitations set forth in section 812.035(10), Florida Statutes (1997), was the controlling

Count II and prayed for treble damages under § 812.035(7), Florida Statutes. Plaintiff was entitled to

of the statute of limitations pursuant to section 812.035(10), Florida Statutes (1995), and the present

of limitations for grand theft is five years. § 812.035(10), Fla. Stat. (1993). .Under section 775.15(6)

He further argues the tolling provision of section 812.035(10), Florida Statutes (1993), is not applicable

on other grounds, 290 So.2d 20 (Fla.1974); Section 812.035(7), (11), Florida Statutes (1981). Affirmed

a five year limitations period pursuant to section 812.035, Florida Statutes. [6] The informations identify

count in the complaint, we also note that section 812.035(7), Florida Statutes, has been amended. Since

plaintiff General Real Estate Limited under Section 812.035(7), Florida Statutes (1985). Although we agree

failing to control their minor children; and (3) section 812.035(7), Florida Statutes (1988), which provides

DCA), cause dismissed, 453 So.2d 44 (Fla.1984); § 812.035(7), Fla.Stat. (Supp.1984).

"within 5 years after the cause of action accrues." § 812.035(10), Fla. Stat. (2003). Here, the grand theft

PER CURIAM. Affirmed. See Fla.R.Civ.P. § 812.035(6), Fla.Stat. (1989). 1.221;

1157, 1163 (Fla. 3d DCA 1984) ("Although Section 812.035, Florida Statutes, the civil remedies section

to include a claim for treble damages under section 812.035(7), Florida Statutes (Supp.1984). The trial

has a five-year statute of limitations under section 812.035(10). Appellee waived arraignment and pled not

trial court trebled these damages pursuant to section 812.035(7), Florida Statutes (Florida’s Civil Theft

and trebling of damages pursuant to Fla.Stat. § 812.035(7) (Supp.1984). We hold that the statutory scheme

damages. This provision was formerly codified at section 812.035(7), but is now codified at Fla.Stat.Ann. §

limitations is the five-year period specified in section 812.035(10), Florida Statutes (2012), rather than the

amend the complaint to include a claim under section 812.035, Florida Statutes, for treble damages. We conclude

this case is controlled by application of section 812.035(10), Florida Statutes (1985), which provides