The 2023 Florida Statutes
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The Amended Complaint asserts Count XI under Florida's criminal RICO statute, Fla. Stat. § 895.05(6), and Count XII under the Federal RICO statute, 18 U.S.C. §§ 1962, 1964(c).Wyche contended that the first, thirteenth, fourteenth, and sixteenth predicate acts occurred many years before the charges and therefore were barred by the statute of limitation; the state postconviction court determined that the claim was conclusory. (Doc. 9-2 at 105.) “[A] criminal or civil action or proceeding under [Florida's racketeering statutes] may be commenced at any time within five years after the conduct in violation of a provision of this act terminates or the cause of action accrues.” § 895.05( 10), Fla. Stat. (2008). “The limitations period commences upon the date the ‘crime' is completed which, for substantive [racketeering] purposes, is the date of the last charged predicate act committed by the individual defendant.” S tate v. Reyan, 145 So.3d 133, 139 (Fla. 3d DCA 2014). The amended information alleged that Wyche committed predicate acts in 1986 through 1994, 2008, and 2009, (Doc. 9-2 at 3-4, 6, 7-8, 10), and the prosecutor filed the amended information on December 9, 2014. However, because the amended information also alleged that Wyche committed predicate acts in 2013 and 2014, (Doc. 9-2 at 2-7), a motion to dismiss would not succeed, and the state… On September 22, 2020, Plaintiffs commenced a Chapter 15 proceeding in the United States Bankruptcy Court for the Southern District of Florida, Case No. 20-20230-RAM (“Chapter 15 Case”). On September 19, 2022, Plaintiffs filed an Adversary Complaint in which they assert the following claims against Defendants: violations of Federal RICO Statute, 18 U.S.C. § 1962(c) (Count I), conspiracy to violate Federal RICO Statute, 18 U.S.C. § 1962(d) (Count II), violation of Florida Civil Rico, Fla. Stat. § 772.103 (Count III), breaches of fiduciary duty under Cayman Islands law (Count IV), unlawful means conspiracy under Cayman Islands law (Count V), knowing receipt and/or equitable proprietary claims under Cayman Islands law (Count VI), usurpation of corporate opportunity under Florida law (Count VIII), civil theft under §772.11, Fla. Stat. (Count IX), conversion under Florida law (Count X), constructive fraud under Florida law (Count XI), unjust enrichment under Florida law (Count XII), imposition of constructive trust under Florida law (Count XIII), request for accounting (Count XIV), and request for preliminary and permanent injunction under §895.05, Fla. Stat. (Count XV).The plaintiff cites to Fla. Stat. §895.05 in support of an award of attorney's fees related to the Florida RICO claim (Doc. 165, p. 9). That statute applies to the “Florida criminal RICO” Act. Johnson Enterprises of Jacksonville, Inc, v. FPL Grp., Inc., 162 F.3d 1290, 1334 n.18 (11th Cir. 1998). The appropriate attorney's fee provision here is Fla. Stat §772.104, a provision of the “Florida civil RICO” Act. See Id. Therefore, the court herein will refer to Fla. Stat. §772.104 in connection with that claim. .Jean-Marie nonetheless argues that section 775.15(1) cannot apply here because the statutory amendment adding the relevant language was passed after the enactment of section 895.05 and did not evince a legislative intent to abrogate the five-year limitation in the RICO statute. See Ch. 77-334, § 5, Laws of Fla. (enacting RICO statute with same five-year limitation period); Ch. 96-145, § 2, Laws of Fla. (adding "felony that resulted in death" language to section 775.15 and providing that amendment will take effect October 1, 1996). However, Jean-Marie's interpretation gets it exactly backwards. We presume legislative knowledge of the existing statutory landscape. See Woodgate Dev. Corp. v. Hamilton Inv. Tr., 351 So. 2d 14, 16 (Fla. 1977) ("The courts presume that statutes are passed with knowledge of prior existing statutes and that the legislature does not intend to keep contradictory enactments on the books or to effect so important a measure as a repeal of a law without expressing an intention to do so."). Accordingly, we assume the legislature knew of the existing five-year statute of limitations in section 895.05( 10) and, through the clear language of… “The Florida criminal RICO statute allows a private plaintiff to bring a civil suit for equitable relief only.” Johnson Enterprises of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1302 n.18 (11th Cir. 1998) (citing Fla. Stat. ch. 895.05(6) (1997)). Defendants argue that as a former employee, Plaintiff does not have standing to pursue injunctive relief. [Doc. 18 at p. 8]. In response, Plaintiff contends that the injunctive relief requested is the correction of the false internal affairs reports that continue to damage his reputation and ability to find a job in law enforcement. [Doc. 22 at pp. 3-4]. While Plaintiff alleges that he was written up for two corrective investigative reports, the Amended Complaint does not include a request for injunctive relief. In fact, both counts seek monetary relief only. As such, the Amended Complaint is subject to dismissal as to the Florida RICO statute.Respondents sued Brinkmann and Majab asserting claims of fraud, fraudulent transfer, unjust enrichment, and violations of Florida's civil RICO (Racketeer Influenced and Corrupt Organization) Act. See § 895.05, Fla. Stat. (2015) (setting forth the civil remedies associated with RICO violations). As a part of that lawsuit, Respondents served Brinkmann and Majab with discovery requests. Respondents also served certain nonparties with subpoenas duces tecum. Specifically, Respondents served subpoenas on Valentine, the real estate agent who assisted Brinkmann and Majab in purchasing and selling real estate in Collier County; Gruber, who serves as Brinkmann's and Majab's accountant and records custodian; and F&E, a Florida company incorporated and managed by Brinkmann, which provided furnishings to the properties purchased by Majab.Keppel also alleges that Defendants violated Florida's RICO statute. But in pleading his state law claim, Keppel cites only to section 895.O2(8)(b) of the Florida Statutes-the Florida criminal RICO statute. Not only is this state law claim insufficiently pleaded, section 895.05( 6) limits the relief available for a private person to injunctive relief. See Johnson Enters, of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1302 n.l8 (11th Cir. 1998) (explaining that section 895.05( 6) of the Florida criminal RICO statute "allows a private plaintiff to bring a civil suit for equitable relief only"). Florida courts have interpreted 895.05( 6) to permit both preliminary and permanent injunctions under certain conditions. See Banco Indus, de Venezuela, C.A. v. Mederos Suarez, 541 So.2d 1324, 1326 (Fla. 3d DCA 1989). Although Keppel argues in his response to Defendants' motion to dismiss that "[t]he injunctive relief requested under [Florida law] is the correction of the false Internal Affairs reports that continue to damage [Keppel] by damaging his reputation and ability to find a job in law enforcement" and that he does not seek an injunction based on… Marchione also alleges that Defendants violated Florida's RICO statute. But in pleading his state law claim, Marchione only cites to section 895.02(8)(b), Florida Statutes-the Florida criminal RICO statute. Not only is this state law claim insufficiently pleaded, section 895.05( 6) limits the relief available for a private person to injunctive relief. See Johnson Enters, of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1302 n.18 (11th Cir. 1998) (explaining that section 895.05( 6) of the Florida criminal RICO statute "allows a private plaintiff to bring a civil suit for equitable relief only"). Because Marchione is no longer an employee of the Pasco County Sheriffs Office and has alleged no threat of future injury, he lacks standing to seek injunctive relief under Florida law. See, e.g., Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 364 (2011) (noting that plaintiffs who were former employees no longer employed by the defendant "lack[ed] standing to seek injunctive or declaratory relief against its employment practices"); Drayton v. W. Auto Supply Co., No. 01-10415, 2002 WL 32508918, at *4 (11th Cir. Mar. 11, 2002) ("[T]his Court has held that former… Lape also alleges that Defendants violated Florida's RICO statute. But in pleading his state law claim, Lape only cites to section 895.O2(8)(b), Florida Statutes-the Florida criminal RICO statute. Not only is this state law claim insufficiently pleaded, section 895.05( 6) limits the relief available for a private person to injunctive relief. See Johnson Enters, of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1302 n.l8 (11th Cir. 1998) (explaining that section 895.05( 6) of the Florida criminal RICO statute "allows a private plaintiff to bring a civil suit for equitable relief only"). Because Lape is no longer an employee of the Pasco County Sheriffs Office and has alleged no threat of future injury, he lacks standing to seek injunctive relief under Florida law. See, e.g., Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 364 (2011) (noting that plaintiffs who were former employees no longer employed by the defendant "lack[ed] standing to seek injunctive or declaratory relief against its employment practices"); Drayton v. W. Auto Supply Co., No. 01-10415, 2002 WL 32508918, at *4 (11th Cir. Mar. 11, 2002) ("[T]his Court has held that former employees who… . . . Forfeiture Act ("the Act"), the Florida Racketeer Influenced and Corrupt Organizations Act ("RICO"), section 895.05 . . .
. . . used in the course of, derived from, or realized through” racketeering activity, see sections 895.01-895.05 . . . last of such incidents occurred within 5 years after a prior incident of racketeering conduct Section 895.05 . . . the course of, derived from, or realized through conduct in violation of a provision of ss. 895.01-895.05 . . . course of, or which was derived from or realized through, a pattern of racketeering activity, See § 895.05 . . .
. . . . § 895.05(10), Fla. Stat. (2003). . . . offenses is five years from the date of commission of the crime as to the racketeering charge, section 895.05 . . . Section 895.05(10), Florida Statutes (2003), provides in pertinent part: "Notwithstanding any other provision . . .
. . . authority to order forfeiture of property for violations of [the gambling laws] is found within F.S. 895.05 . . .
. . . . § 895.05; see Network Services, 617 F.3d at 1144-45 (requiring disgorgement of fees based on constructive . . . Stat. § 895.05; Hudson National Bank v. . . .
. . . . § 895.05(2) requires a plaintiff in a defamation suit against a media source to provide notice of the . . . testified that she sent one, her description of the letter’s content could not establish compliance with § 895.05 . . . Barlass, but even by her account the letter she sent did not comply with the notice requirement of § 895.05 . . .
. . . .” § 895.05(18). It does not necessarily mean “secure” detention. . . .
. . . appeal a final order denying their motion for criminal attorney’s fees and costs pursuant to section 895.05 . . . dismissal of the civil RICO action,'and the Marks made a motion for attorney’s fees, pursuant to section 895.05 . . . This case is governed by subsections 895.05(5) and (7), Floridá Statutes. . . . Section 895.05(7), governing civil RICO actions, states, in relevant part: The Department of Legal Affairs . . . finding that the claimant raised a claim which was without substantial factual or legal support. § 895.05 . . .
. . . See § 895.05, Fla. Stat. (2005); Ruth v. . . .
. . . against Walter Smith, his attorneys and their law firms in circuit court pursuant to sections 57.105 and 895.05 . . . Viragen also sought fees pursuant to section 895.05(7), for bringing a frivolous civil RICO claim. . . . without such support in both fact and law, and thus also properly awarded fees pursuant to section 895.05 . . .
. . . She could choose a 30 year plan and pay between $895.05 per month and $928.95 per month, and her total . . .
. . . civil RICO are barred by the five-year statute of limitations, according to sections 812.035(10)and 895.05 . . .
. . . See §§ 895.04, 895.05, Fla. Stat. (2000). . . . “The civil remedies of section 895.05 are available for violations of chapter 895, which primarily targets . . . See § 895.05(3), Fla. Stat. . . . To meet those two duties we interpret section 895.05(3), allowing seizure “upon court process,” to mean . . .
. . . Florida Statutes (2000), which reads in part: If, pursuant to the civil enforcement provisions of s. 895.05 . . .
. . . , through the Department of Legal Affairs, initiated a civil suit which sought relief under section 895.05 . . . pursuant to section 895.06(2), which provides: If, pursuant to the civil enforcement provisions of s. 895.05 . . .
. . . Section 895.05(6), Florida Statutes, (1999) states, in pertinent part: [R]elief shall be granted in conformity . . .
. . . Stat. ch. 895.05(6) (1997). . . .
. . . money, and personal property derived from proceeds of alleged criminal activities pursuant to section 895.05 . . . the course of, derived from, or realized through conduct in violation of a provision of ss. 895.01-895.05 . . . is subject to civil forfeiture to the state. § 895.05(2)(a), Fla. . . . Subsection 895.05(5) states: The Department of Legal Affairs, any state attorney, or any state agency . . . actions, including the acceptance of satisfactory performance bonds, as the court may deem proper. ’ § 895.05 . . .
. . . . § 895.05(2). . . .
. . . concerning the relationship between sections 895.01-.06, Florida Statutes (“RICO”), in particular section 895.05 . . . The complaint sought forfeiture pursuant to subsection 895.05(2) of two parcels of real property, one . . . See § 895.05(5) Fla. Stat. (1995). . . . Subsection (5) of section 895.05, Florida Statutes, states in part: Pending final determination, the . . . Section 895.05(5), Florida Statutes (1993), states: (5) The Department of Legal Affairs, any state attorney . . .
. . . or income derived from or used during the course of racketeering are subject to forfeiture under § 895.05 . . .
. . . The State's request for forfeiture was based on section 895.05(2), Florida Statutes (1989), which provides . . . the course of, derived from, or realized through conduct in violation of a provision of ss. 895.01-895.05 . . . PROPERTY AS BETWEEN THE STATE AND THE DEFENDANT IN A CIVIL FORFEITURE ACTION BROUGHT PURSUANT TO SECTION 895.05 . . . The State sought various forms of relief provided by section 895.05, Florida Statutes (1989), including . . . See Id. § 895.05; see also Delisi v. . . . See § 895.05(2)(a), Fla. Stat.; see also Department of Law Enforcement, 588 So.2d at 966. . . .
. . . Stat. 895.05(2); Hucko v. Jos. Schlitz Brewing Co., 100 Wis.2d 372, 302 N.W.2d 68 (App.1981). . . .
. . . an electronic bulletin board located on “SportsNet” was a periodical within the meaning of section 895.05 . . . In holding that the posting was not a periodical, the court stated: [S]ubsec. (2) of § 895.05, STATS. . . . Therefore, we conclude that extending the definition of ‘periodical’ under § 895.05(2), STATS., to include . . .
. . . said properties without prior approval of the Court, during the pendency of this action, under Section 895.05 . . . Section 895.05, Florida Statutes (1989), delineates the following civil remedies under the Florida RICO . . . Furthermore, section 895.05(2) provides for civil forfeiture of property and states: “All property, real . . . the course of, derived from, or realized through conduct in violation of a provision of ss. 895.01-895.05 . . . The state argues that section 895.05(1), Florida Statutes (1989), grants any circuit court in the State . . .
. . . . § 895.05(7). . . . granting attorney’s fees to plaintiffs as prevailing Florida RICO defendants pursuant to Fla.Stat. § 895.05 . . .
. . . 1993, appellees filed a second motion seeking attorney’s fees pursuant to sections 57.105, 772.104 and 895.05 . . . correctly contend, the trial court’s award of attorney’s fees was also based on sections 772.104 and 895.05 . . . Section 895.05(7), Florida Statutes (1998), contains a virtually identical provision, with the sole variation . . . for determining entitlement to attorney’s fees is slightly less stringent under sections 772.104 and 895.05 . . . would be obligated to pay the opposing party’s attorney’s fees, section 772.104 (and presumably section 895.05 . . .
. . . The RICO Act considered in Caggiano concerned a state forfeiture statute, § 895.05(2)(a), Florida Statutes . . .
. . . Fla.Stat. (1989) (State’s expenses in processing insurance claims include investigative expenses); § 895.05 . . .
. . . .-104, enacted in 1986 to correct problems resulting from including its RICO predecessor, section 895.05 . . .
. . . Petitioners seek to prohibit their further prosecution for violation of section 895.05(3), Florida Statutes . . . essence a new prosecution and thus filed beyond the five year racketeering statute of limitations. § 895.05 . . . The legislature expressly provided a five year limitation for such prosecution. § 895.05(10), Fla. . . .
. . . .-104 and 895.05(7), Florida Statutes (1991), and pursuant to section 57.105, Florida Statutes (1991) . . .
. . . grounds that the property was “used” in the course of racketeering activity in violation of section 895.05 . . . the course of, derived from, or realized through conduct in violation of a provision of ss. 895.01-895.05 . . . is subject to civil forfeiture to the state. § 895.05(2)(a), Fla.Stat. (1989). . . .
. . . See, e.g„ §§ 27.56(1)(a); 45.061(3)(a); 253.03(13); 373.129(6); 489.132(3) 631.54(5); 895.05(7); 895.07 . . .
. . . April 13, 1990, the state filed RICO lien notices against appellees’ properties pursuant to section 895.05 . . . argues that section 895.07(9) is effective when only a RICO lien notice has been filed and that section 895.05 . . . Section 895.05(5) provides in pertinent part that “[i]n any action brought under this section, the circuit . . . Under section 895.05(5), the court has the authority to, at any time, enter injunctions, prohibitions . . . had no authority to grant the state’s motion when, in fact, it did have such authority under section 895.05 . . .
. . . Sections 895.05(3) and 895.05(4), Florida Statutes (1985). . . . .
. . . offenses is five years from the date of commission of the crime as to the racketeering charge, section 895.05 . . .
. . . . § 895.05(7), applicable to this law suit, tracked the federal treble damage provision. . . . .
. . . Consequently, the state sought forfeiture of the appellant’s homestead pursuant to section 895.05(2)( . . .
. . . This lien notice was authorized under section 895.05(12)(a), Florida Statutes (1989), of the RICO Act . . . A lien notice under section 895.05(12)(a) is obtained as follows: [T]he Department of Legal Affairs, . . . The State’s section 895.05(12)(a) RICO lien notice was recorded on May 16, 1989. . . . (12)(a) notice, in accordance with the requirements of section 895.05(12)(e). . . . See §§ 48.23, 895.05(2)(b), Fla.Stat. (1989). . . .
. . . not undertake a criminal investigation, arrest him, or seek a cease and desist order under section 895.05 . . .
. . . , et seq., has been interpreted as permitting a court to issue a temporary injunction under section 895.05 . . . Section 895.05(6) provides relief against unlawful violations of the RICO Act. § 895.05(1), Fla.Stat. . . . court to issue such injunctions “after making due provisions for the rights of innocent persons.” § 895.05 . . . she is not alleged to have violated the RICO Act, she is an “innocent person” under the statute. § 895.05 . . . under the RICO Act, the trial court must make “due provisions for the rights of innocent persons.” § 895.05 . . .
. . . Florida Statutes, § 895.05(10). . . . Defendant is also correct in pointing out that Florida Statutes § 895.05(7) does not authorize the recovery . . . In her response to Defendant’s motion to dismiss, Knight quotes Florida Statutes, § 895.05(7) (1987) . . . Florida Statutes, § 895.05(7) (1987) and (1989) reads: The state, including any of its agencies, instrumentalities . . . Section 895.05(7) will not support an award of attorneys’ fees for Plaintiff. . . .
. . . Stat. (1989) (making racketeering a first-degree felony) and § 895.05(2), Fla.Stat. (1989) (authorizing . . .
. . . . §§ 772.104, 812.035, 895.05, these exclusions involve civil redress for actions in which punitive damages . . .
. . . appellant argues that this statute was procedural in nature, designed to correct problems in section 895.05 . . . 86-277, which created chapter 772, the legislature described the bill as, inter alia, “amending s. 895.05 . . . Section 895.05(7), Florida Statutes (1985), had provided private victims a civil remedy for the identical . . . designed to correct problems resulting from the inclusion of its RICO predecessor provision, section 895.05 . . . See § 772.17, Fla.Stat. (1987); § 895.05(10), Pla.Stat. (1981). . . .
. . . filed an additional civil complaint against appellant, seeking remedies under Sections 812.035 and 895.05 . . . appellee filed an “Amended Complaint” in the consolidated cases seeking forfeiture, pursuant to Sections 895.05 . . .
. . . With such amendment, the court finds the plaintiffs have standing under § 895.05 Florida Statutes (1987 . . .
. . . . § 895.05(7) (1984), 812.035(7) (Supp.1984), track the federal provision thereby making this rationale . . .
. . . . § 895.05(6), Fla.Stat. (1985). . . . The author distinguishes subsection 1 from subsection 6 of section 895.05 by suggesting that subsection . . . Section 895.05(1) sets forth a nonexclusive list of orders the court may issue to enjoin violations of . . . 15 (Fla.1982) (applying section 812.035(1), Florida Statutes (1977), which is identical to section 895.05 . . . Subsection (l)(d) of section 895.05 refers specifically to temporary relief, namely the suspension of . . . Southeast Bank, N.A., 490 So.2d 976 (Fla. 4th DCA 1986), which was the first judicial treatment of section 895.05 . . . Section 895.05(6) permits [an] aggrieved person [to] institute a proceeding under subsection (1). . . . Section 895.05(1) provides, in relevant part: Any circuit court may, after making due provision for the . . . In Finkelstein, the court construed section 895.05(6) as requiring the party seeking a preliminary injunction . . . As we read the plain language of the balance of section 895.05(6), the only requirements for a preliminary . . .
. . . contains an explicit provision for punitive damages: “Punitive damages, which are permitted in section 895.05 . . .
. . . theft statute, 812.085(6), Florida Statutes, as well as the Florida RICO statute, Florida Statutes, 895.05 . . .
. . . . § 1962(c) (the federal RICO Act); § 895.05 of the Florida Statutes (Florida RICO); Count VI, breach . . .
. . . . § 895.05) This count is the Florida counterpart to the federal RICO claim alleged in Count VIII. . . .
. . . Section 895.05, Florida Statutes, provides for forfeiture of real property and sets out the procedures . . .
. . . . § 895.05(7), which mandates an award of treble damages in the amount of $260,500.44. . . .
. . . The relevant limitation period is expressed in § 895.05(10), which states: Notwithstanding any other . . .
. . . Co., 281 So.2d 558 (Fla. 3d DCA 1973), cert. denied, 289 So.2d 737 (Fla. 1974); §§ 895.05(6), 812.035 . . .
. . . . § 895.05(7) which mandates an award of treble damages and, where appropriate, punitive damages. . . .
. . . . § 895.05(6), (7) (1985). In other words, RICO is not concerned with uniquely federal interests. . . .
. . . Florida Statutes (1983), and Florida’s RICO (Racketeer Influenced and Corrupt Organizations) Act, Section 895.05 . . . Section 895.05(6), Florida Statutes (1985), provides: Any aggrieved person may institute a proceeding . . .
. . . within a federal statute, the most analogous state statute of limitation is applied) and Fla.Stat. ss. 895.05 . . .
. . . . § 895.05(2). . . . Section 895.05(2) requires that before commencing a civil defamation action based on allegedly libelous . . .
. . . Punitive damages, which are permitted in section 895.05(7), are appropriate where fraudulent conduct . . .
. . . Count IV alleges violation of Florida Statutes § 943.462 and § 943.464, now § 895.03 and § 895.05, the . . . racketeering activity” sufficient to support a civil action under 18 U.S.C. § 1962 and Fla.Stat. § 895.05 . . .
. . . Section 895.05(1), Wis.Stats. . . . .
. . . . § 895.05 (1975). Application of the privilege varies from state to state. . . .
. . . dismissal is mandated by the plaintiff’s failure to comply with the Wisconsin Retraction Statute, Sec. 895.05 . . . Madison Newspapers, Inc., (1977), 81 Wis.2d 1, 3, 259 N.W.2d 691-describing 895.05(2) as “a prerequisite . . . conformity with the policy stated above, however, the court is satisfied that the Legislature intended § 895.05 . . . Sec. 895.05(1), Wis.Stats. Williams v. . . .
. . . Less collection from the Sanders Co- 10. 00 Loss on affiliated companies stock and receivables_ 71, 895.05 . . .
. . . In arriving at the loss of $56,186.33, plaintiff claimed deductions in his return of $132,-895.05 on . . .