The 2023 Florida Statutes
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On April 4, 2016, the deadline for amended pleadings, Plaintiffs filed the First Amended Complaint, adding their spouses and employers as parties, and dropping a claim for rescission of contracts. (Doc. 41). The First Amended Complaint alleged several causes of action: Count I alleged a claim under Florida's RICO (Racketeer Influenced and Corrupt Organization) Act, Fla. Stat. §§ 895.01 – 895.06. Count II alleged a claim for common law unfair competition. Count III asserted a misleading advertising claim under Florida Statute § 817.41. Count IV alleged a claim of fraud by concealment. Count V asserted a common law fraud claim. Count VI asserted a claim of aiding and abetting against American General. Count VII asserted a claim under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. §§ 501.201 –.23. Count VIII asserted a claim for breach of fiduciary duty. Count IX asserted a claim for constructive fraud. Finally, Count X asserted a claim for negligent misrepresentation.
Petitioner argues that Williams is wrongly decided and complains that, unlike the State, a criminal defendant does not have an investigative subpoena power or the right to have a subpoena remain secret. Cf. State v. Investigation, 802 So.2d 1141, 1144 (Fla. 2d DCA 2001) (recognizing that section 27.04, Florida Statutes, allows “the state attorney to issue subpoenas duces tecum for records as part of an ongoing investigation”) (additional citations omitted); see also § 119.071(2)(c) 1, Fla. Stat. (2015) (exempting “active criminal investigative information” from the public records law); § 895.06(2), Fla. Stat. (2015) (providing for confidentiality of civil investigative subpoenas issued in racketeering investigations).
We affirm the convictions for conspiracy to commit racketeering and organized scheme to defraud, but reverse the racketeering conviction because the State failed to prove that de la Osa committed the two predicate acts required by the Florida RICO (Racketeer Influenced and Corrupt Organization) Act, sections 895.01 –895.06, Florida Statutes (2003).
In the instant case, the Complaint did not allege merely that the currency was an “instrumentality” of a crime, nor seek forfeiture based only upon the definition of “contraband article” contained in section 932.701(2)(a)(5). Count II of the Complaint alleged that Mr. Marolf was engaged in a pattern of racketeering activity and an organized scheme involving, inter alia, the ongoing purchase and sale of stolen goods. The Complaint alleged that the $197,016 represented proceeds realized through, or derived directly or indirectly from, this pattern of racketeering activity, and that the currency was intended to be used in furtherance of this criminal enterprise. Count II sought forfeiture of the currency pursuant to The Florida RICO Act (sections 895.01 –895.06, Florida Statutes (2014) ), which provides a civil forfeiture remedy for proceeds derived from a pattern of racketeering activity. The Florida RICO Act contains the following relevant definitions :
See Check 'n Go of Florida, Inc. v. State, 790 So. 2d 454, 457-58 (Fla. 5th Dist.Ct.App. 2001) (civil investigative subpoena under 895.06, Fla. Stat., is not a pending charge and its function, to allow investigative agency to collect evidence to determine if a RICO violation has occurred, is distinct from an adjudication); Eight Hundred, Inc. v. State, 781 So. 2d 1187, 1190 (Fla. 5th Dist.Ct.App. 2001) (rules of civil procedure do not apply to civil investigative subpoena under 895.06, Fla. Stat.); see also Major League Baseball v. Butterworth, 181 F.Supp.2d 1316, 1321 n. 2 (a civil investigative demand is simply part of an executive investigation and it is not a court proceeding over which the Florida Supreme Court has rule making authority).
Florida Racketeer Influenced and Corrupt Organization Act (§§ 895.01— 895.06, Fla. Stat.(1997)).
The Florida RICO (Racketeer Influenced and Corrupt Organizations) Act, sections 895.01 — 895.06, Fla. Stat. (2002).
§§ 895.01- 895.06, Fla. Stat. (2000)
§ 895.06(2), Fla. Stat. (1999). An investigative agency is defined as "the Department of Legal Affairs, the Office of Statewide Prosecution, or the office of a state attorney." § 895.06(1), Fla. Stat. (1999).
Appellants first contend that the trial court erroneously denied their motions for judgment of acquittal on conspiracy to commit racketeering under Florida's Racketeering Influenced and Corrupt Organization Act, or "RICO," codified at sections 895.01 — 895.06, Florida Statutes (1997). Appellants specifically argue that the trial court erroneously denied their motions for judgment of acquittal since the State failed to present sufficient evidence that they conspired to engage in a criminal enterprise. We disagree. The evidence presented is ample to support the charge under the three-prong test of Boyd v. State, 578 So.2d 718, 721-22 (Fla. 3d DCA 1990), review denied, 581 So.2d 1310 (Fla. 1991). The facts of the instant case are more akin to the second district's holding in Clark v. State, 645 So.2d 575 (Fla. 2d DCA 1994), review denied, 652 So.2d 816 (Fla. 1995), than Brown v. State, 652 So.2d 877 (Fla. 5th DCA 1995).
. . . . §§ 895.01 - 895.06. Count II alleged a claim for common law unfair competition. . . .
. . . Stat. (2015) (exempting “active criminal investigative information” from the public records law); § 895.06 . . .
. . . acts required by the Florida RICO (Racketeer Influenced and Corrupt Organization) Act, sections 895.01-895.06 . . .
. . . Count II sought forfeiture of the currency pursuant to The Florida RICO Act (sections 895.01-895.06, . . .
. . . . § 895.01-895.06, (x) Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c), (xi) . . .
. . . . § 895.01-895.06, (x) Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c), (xi) . . .
. . . Florida Racketeer Influenced and Corrupt Organization Act (§§ 895.01-895.06, Fla. Stat.(1997)). . . .
. . . The Florida RICO (Racketeer Influenced and Corrupt Organizations) Act, sections 895.01-895.06, Fla. . . .
. . . investigatory subpoena duces tecum to the appellant, Check ‘n Go of Florida, Inc., pursuant to section 895.06 . . . office issued the subpoena duces tecum in question pursuant to its investigatory authority under section 895.06 . . . No case law in Florida defines the “reason to believe” standard in the context of section 895.06. . . . The purpose of the subpoena power under section 895.06 is to allow an investigative agency to investigate . . . SHARP, W„ and PETERSON, JJ., concur. . §§ 895.01-895.06, Fla. Stat. (2000) . Terry v. . . .
. . . The subpoena was issued pursuant to section 895.06, Florida Statutes, which authorizes the issuance of . . . captioned as a subpoena duces tecum, it was issued as an investigative subpoena pursuant to section 895.06 . . . agency may administer oaths or affirmations, subpoena witnesses or material, and collect evidence. § 895.06 . . . Prior to 1984, section 895.06(2) provided that the investigatory agency’s collection of evidence was . . . of Civil Procedure to the issuance of investigative subpoenas under the current version of section 895.06 . . .
. . . Florida’s Racketeering Influenced and Corrupt Organization Act, or “RICO,” codified at sections 895.01-895.06 . . .
. . . , and a violation of the Florida Racketeer Influenced and Corrupt Organization Act, sections 895.01-895.06 . . .
. . . .-01-895.06, Fla.Stat. (1991). . . . .
. . . connection with enforcement of the Racketeer Influenced and Corrupt Organization Act and cited to section 895.06 . . .
. . . . §§ 895.01-895.06 (West Supp.1991). . . .
. . . Sections 895.101-895.06 are titled “The Florida Racketeer Influenced and Corrupt Organization Act. . . .
. . . See §§ 895.01 — 895.06, Fla.Stat. (1985 and Supp.1986). . . . .
. . . Sections 895.01-895.06, Florida Statutes (1985). . . . .
. . . .-01-895.06 (1981), which is “nearly identical to the federal RICO statute.” . . .
. . . The Florida RICO Act is contained in sections 895.01-895.06, Florida Statutes (1985). . . .
. . . Sections 895.01-895.06, Florida Statutes. . Section 687.071(3), Florida Statutes. . . . .
. . . .-01-895.06, Florida Statutes (1981). . . .
. . . Sections 943.46-943.465, Fla.Stat. (1979); subsequently revised and recodified, sections 895.01-895.06 . . .