Opinion
Case No. 4D02-735.
Opinion filed July 16, 2003
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dorian Damoorgian, Judge; L.T. Case No. 01-14346 CF10A.
Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
We grant the motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.
ON MOTION FOR REHEARING
We grant the motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.
Appellant was convicted in Broward County of a violation of section 817.52(3), Florida Statutes (2001), for failure to return a car she rented in Atlanta, Georgia. She contended that the crime did not occur in Florida. Because she kept the vehicle in Florida, her refusal to return the vehicle occurred in this state. We therefore affirm.
Appellant rented a car from Atlanta Rent-A-Car which has ten offices in Atlanta and one in Birmingham, Alabama. It has no offices in Florida. Appellant indicated to the rental agency that she was from New York, was staying at a motel, and needed a vehicle for a day or two. She executed a rental agreement for a one-day rental. According to the agreement, she was to return the vehicle to the same office the next day. If appellant failed to return the vehicle at that time, and converted the vehicle to her own use, the rental agreement indicated such actions may constitute theft under Georgia law. Appellant did not return the vehicle the next day but drove it to Broward County where her mother lived.
The rental agency manager did not become concerned about appellant's failure to return the vehicle until it was overdue for four days. After a week, the company charged appellant's credit card $200 for the week's rental. The company continued to charge the card $200 periodically for the use of the vehicle.
Approximately two weeks after appellant failed to return the vehicle, the manager contacted an auto recovery service and provided it with appellant's driver's license which listed a New York address. The manager sent a certified demand letter for the return of the vehicle to that address. Receiving no response six or seven weeks later, the manager reported the vehicle stolen and had a warrant issued in Georgia.
Ultimately, the vehicle was located at appellant's mother's home in Broward County. The manager had the vehicle shipped back to Atlanta, and the State of Florida charged appellant with failure to return a hired vehicle. Appellant moved to dismiss the information, contending the crime was committed in Atlanta, Georgia, not in Broward County. The trial court denied the motion. The case went to trial, resulting in a conviction and sentence for appellant. From this judgment and sentence she appeals.
Appellant claims the court erred in refusing to give jury instructions on both venue and jurisdiction, claiming that the evidence established the offense occurred in Georgia because she failed to return the vehicle to the Atlanta agency. Section 817.52(3) provides:
Whoever, after hiring a motor vehicle under an agreement to redeliver the same to the person letting such motor vehicle or his or her agent, at the termination of the period for which it was let, shall, without the consent of such person or persons and with intent to defraud, abandon or willfully refuse to redeliver such vehicle as agreed shall, upon conviction, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
The elements of the crime, therefore, consist of:
(1) the execution of a lease agreement including a provision that the vehicle shall be redelivered to the person letting such property;
(2) the expiration of the lease period;
(3) the willful refusal to redeliver the vehicle with the intent to defraud;
(4) the lack of consent of the person who let the vehicle.
Under section 910.005, Florida has jurisdiction to prosecute cases in which:
(1) A person is subject to prosecution in this state for an offense that he commits, while either within or outside the state, by her or his own conduct or that of another for which he is legally accountable, if:
(a) The offense is committed wholly or partly within the state;
(2) An offense is committed partly within this state if either the conduct that is an element of the offense or the result that is an element, occurs within the state.
As appellant's refusal to redeliver the vehicle occurred in Broward County, Florida, this state had jurisdiction and Broward County was the appropriate venue in which to bring charges.
This case is analogous to Jenner v. State, 159 So.2d 250 (Fla. 1st DCA 1964). There, a defendant lawfully took possession of boats in Taylor County, Florida, which were then delivered to, and stored in, St. Louis, Missouri, with the owner's consent, for sale. After disputes with the Florida boat company arose, defendant refused to return the boats to the owner in Florida. The state charged the defendant with theft. See id. at 251. Defendant contested whether a charge could be brought in Taylor County. The court determined that because defendant had been in lawful possession of the boats when they left Florida, the intent to deprive the owner of its property could not have occurred in Florida but instead occurred, if at all, in Missouri. The court reversed appellant's conviction and remanded for discharge. See id. at 252-53.
Similarly, appellant had lawful custody of the vehicle when she left Atlanta. Therefore, the intent to defraud and refusal to redeliver occurred in Broward County where she took the vehicle. Although a defendant is entitled to a requested jury instruction on his theory of defense provided the evidence in the record supports that theory, see Vazquez v. State, 518 So.2d 1348, 1350 (Fla. 4th DCA 1987), all of the evidence produced refuted appellant's claim of lack of jurisdiction and improper venue, as at least one element of the crime occurred in Florida.
We affirm the remaining issues without further discussion.
STONE J., concur.
FARMER, C.J., concurs specially with opinion.
The conduct for which defendant was convicted is one of those offenses that is physically incapable of being complete in the moment it is undertaken. It is not over in an instant or a brief span of time, as when a discrete physical act is performed. Shooting someone, for example, is complete the instant following the act of shooting.
There is a kind of conduct, however, that takes place in an expanse of time and maybe even of place. I have in mind something akin to an act of being, an intransitive verb. Or, as in this instance, of not doing something one is obligated to do. This is often referred to as a continuing offense. Possession of stolen property strikes me as one. It continues as long as the stolen property is had and wherever it is possessed illegally. For this kind of offense, as Yogi might say, "it ain't over till it's over."
Because of multiple sovereigns, the fact that a continuing offense may be punished in more than one jurisdiction does not create a double jeopardy problem. It does, however, act as a powerful disincentive to continuing the act in more than one jurisdiction.
Defendant's act was of the continuing kind. Her offense is willfully failing to return a rental vehicle after the term of the lease had expired. Logically, once this offense was set into being, it necessarily continued (and thus was not complete) as long as the vehicle was not returned to the lessor when it should have been.
In drafting the statute, the Legislature could have specified that each day the vehicle is not returned when it should have been constitutes a separate offense. As it did not so specify, the offense is merely a continuing one until it is returned.
And, as this case illustrates, because it continues it also occurs wherever the vehicle is kept during the failure to return. Thus while the failure to return may have begun in Georgia on the day following the one-day lease, it must be deemed to have continued all the days following until it was returned (involuntarily). It also continued into new jurisdictions and venues as she drove the car into Florida and down to Broward County. Therefore, if she was guilty at all of failing to return the vehicle, she was certainly guilty of it until she returned it and wherever she took it while she failed to return it. As I said, in this sense her offense is not unlike an illegal possession that continues for days or months while the purloined thing is taken from place to place.
The problem with defendant's jury instruction is that an issue of jurisdiction or venue would have been possible only in respect of a completed act in one place. Was the shooter in Broward or Palm Beach County when the shot was fired? In the context of this continuing act, however, there is no possible jurisdictional or venue issue in any of the places where she kept the car while illegally failing to return it. Hence no error in denying the instruction.
It is possible to imagine a shooting in which the shooter and the victim were both athwart the county line. Where crimes are committed in more than one county, either is a proper venue.
If she wanted to limit venue to a particular place while she illegally failed to return the car, perhaps she should have kept it only in that place.
On this basis I concur in the affirmance of defendant's conviction.