Scheme to Defraud
In Florida, the crime of “scheme to defraud” involves proof of the following elements:
- an ongoing and continuing series of acts;
- intended to defraud someone;
- by obtaining something of value; and
- through one of the following acts:
- fraudulent or false promises;
- fraudulent or false representations
- fraudulent or false endorsements of nonconsenting parties;
- fraudulent or false promises; or
- willful misrepresentations of a future act.
The “Scheme to Defraud” statute in Florida prohibits financial fraud through any technology, including the Internet, mail, wire, telephone, or other types of communication.
In many of these cases, a respected member of the community is accused. The accusation usually arises during the course of the individual’s employment. The potential punishments depend on various factors, including the value of the property obtained.
Attorneys for Scheme to Defraud Crimes in Tampa, FL
At Sammis Law Firm, we have represented business owners and many long-term employees charged with this serious white-collar crime. Many of our clients have no prior record.
Visit our main office in downtown Tampa, FL, just a few blocks from the courthouse. We have additional offices in New Port Richey in Pasco County, across the street from the courthouse at the West Pasco Judicial Center. We also have an office in Clearwater in Pinellas County, just a few blocks from the Criminal Justice Center (CJC) courthouse.
Our attorneys fight theft and property crime cases throughout the greater Tampa Bay area. If you are charged with engaging in a scheme to defraud in Tampa, Hillsborough County, or the surrounding areas in Tampa Bay, FL, call an experienced criminal defense attorney at the Sammis Law Firm.
We can help you fight these charges. Act quickly to preserve all avenues of attack.
Call (813) 250-0500.
Sealing Your Record and Disqualifying Offenses
Scheme to defraud is a “crime of dishonesty” treated very seriously under Florida law, even for the misdemeanor version of the offense. Any offense for “scheme to defraud” is on a list of disqualifying offenses ineligible under Florida law to be sealed. Even if the court withholds adjudication and places you on probation for a scheme to defraud, you will never be eligible to seal your criminal record.
For this reason, if you plan on entering a plea, it is essential to get the charges reduced to a less serious offense, such as petit or grand theft, so that the record can eventually be sealed.
Punishments and Penalties for Scheme to Defraud Crimes
Under Section 817.034(4)(a), the maximum punishment or penalty available under the Florida Organized Scheme to Defraud Statute depends on the amount of the loss:
- a loss of less than $20,000 is a third-degree felony
- punishable by five (5) years in Florida State Prison
- Level 3 offense
- a loss of $20,000 or more but less than $50,000 is a second-degree felony
- punishable by fifteen (15) years in Florida State Prison
- Level 5 offense
- a loss of $50,000 or more is a first-degree felony
- listed as ORGANIZED FRAUD OVER $50,000 (FRAU7000) (F1)
- punishable by 30 years in Florida State Prison
- Level 7 offense
Under Section 817.034(4)(b), any person who engages in a scheme to defraud and, in furtherance of that scheme, communicates with any person with the intent to obtain property from that person is guilty, for each such act of communication, of communications fraud, punishable as follows:
- a scheme to defraud $300 or more is a third-degree felony punishable by 5 years in Florida State Prison;
- a scheme to defraud less than $300 is a misdemeanor in the first degree, punishable by up to 12 months in the county jail and a $1,000 fine.
According to the Criminal Justice Committee (CJ), CS/CS/HB 1171 amended Section 817.034, F.S., to reclassify the penalty for committing specified offenses of schemes to defraud. The penalty for committing the offense of scheme to defraud against a person 65 years of age or older, against a minor, or against a person with a mental or physical disability, is as follows:
- A first degree misdemeanor is reclassified to a third degree felony;
- A third degree felony is reclassified to a second degree felony;
- A second degree felony is reclassified to a first degree felony; and
- A first degree felony is reclassified to a life felony.
The new legislation also added “endorsements of nonconsenting parties” to the definition of “scheme to defraud.” The new legislation provides that a person whose image or likeness is used without their consent in a scheme to defraud may file a civil action in a court of competent jurisdiction to recover damages caused by the use of his or her image or likeness. The civil remedies in the bill are in addition to and not in limitation of the remedies available under common law or any other law.
The legislative changes to the crime of scheme to defraud contained in CS/CS/HB 1171 take effect October 1, 2024.
Each Communication or Taking Can be Charged Separately
Each communication or offense can be charged separately, which can dramatically increase the bond amount, the score under the sentencing guidelines, and the potential maximum sentence.
In many cases, the theft of goods or services takes place repeatedly over time. Instead of proving the individual theft offenses, the prosecutor usually has an easier time proving the overarching scheme to defraud.
In these cases, if the case proceeds to trial then the prosecutor with the State Attorney’s Office must also prove the aggregate value of the property fell within a certain range. Many of these cases involve obtaining property from an employer or business associate.
Legislative Intent for the Fraudulent Scheme Charge
The Florida Communications Fraud Act includes a crime for the organized scheme to defraud. This charge modernizes the Fraud Statutes in Florida to incorporate changes in technology.
Section 817.034 is titled the “Florida Communications Fraud Act.” The Florida Legislature specifically provided its intent in adopting the criminal statute: (1) Legislative intent.—
(a) The Legislature recognizes that schemes to defraud have proliferated in the United States in recent years and that many operators of schemes to defraud use communications technology to solicit victims and thereby conceal their identities and overcome a victim’s normal resistance to sales pressure by delivering a personalized sales message.
(b) It is the intent of the Legislature to prevent the use of communications technology in furtherance of schemes to defraud by consolidating former statutes concerning schemes to defraud and organized fraud to permit prosecution of these crimes utilizing the legal precedent available under federal mail and wire fraud statutes.
Jury Instruction for F.S. s. 817.034(4)(a)1, 2, 3
The jury instruction for organized fraud under Florida Statute Section 817.034(4)(a) can be found at 20.19. The instruction was adopted in 2012 and amended on December 5, 2013.
To prove the crime of Organized Fraud, the State must prove the following two elements beyond a reasonable doubt:
- Defendant engaged in a scheme to defraud.
- Defendant thereby obtained the property alleged in the information or charging document.
The jury instruction also provides special instructions for the degree of the charge: If you find the defendant guilty of Organized Fraud, you must also determine if the State has proved beyond a reasonable doubt whether:
- The aggregate value of the property obtained was $50,000 or more;
- The aggregate value of the property obtained was $20,000 or more but less than $50,000;
- The aggregate value of the property obtained was less than 20,000.
Definition for Organized Fraud Terms
In Florida, the term “scheme to defraud” is defined as a systematic, ongoing course of conduct with the intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act.
Under the statutory scheme, the term “obtain” means to temporarily or permanently deprive any person of the right to property or a benefit therefrom, or to appropriate the property to one’s own use or to the use of any other person not entitled thereto.
“Property” means anything of value, and includes:
- Real property, including things growing on, affixed to, or found in land;
- Tangible or intangible personal property, including rights, privileges, interests, and claims; and?
- Services.
“Value” means the value determined according to any of the following:
- The market value of the property at the time and place of the offense, or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.
- If the exact value cannot be determined, then the jury is told they should attempt to determine a minimum value.
- If the minimum value of the property cannot be determined, the jury is told they must find the value is less than $20,000.
If the property obtained is a written instrument or trade secret that does not have a readily ascertainable market value, then the trial court should give the definition of “value” in s. 817.034(3)(e) 1.b or 1.c.
“Willful” means intentional, purposeful, and with knowledge.
Lesser Included Offenses of Organized Fraud
To determine whether and how an offense qualifies as a lesser included offense, the courts compare the statutory elements. For example, in Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006), the court held that for a double jeopardy analysis, grand theft is a lesser included offense of organized fraud because all the statutory elements of grand theft are subsumed by the statutory elements of organized fraud.
Therefore, lesser included offenses of Organized Fraud under Florida Statute Section 817.034(4)(a)1, 2, 3 can include grand theft or petit theft.
Additional Resources
Scheme and Artifice to Defraud – Visit the website of the United States Department of Justice to find information about the federal version of the crime of “scheme and artifice to defraud” found in Chapter 942 of the criminal resource manual. The term “scheme to defraud” is not restricted by any common-law definition of false pretenses. Instead, the term signifies the deprivation of something of value by trick, chicane, or overreaching. Many of these cases involve acts of embezzlement by appropriating money or goods entrusted to one’s own care by another.
Finding a Lawyer for a Scheme to Defraud in Florida
Contact an attorney experienced in fighting an organized scheme to defraud and other theft crime cases in Florida such as felony grand theft. Our main office is located in Tampa in Hillsborough County, FL. Our second office is located in New Port Richey in Pasco County, FL.
We represent clients in fraud cases throughout Hillsborough County and the surrounding areas throughout Tampa Bay.
We fight organized fraud crimes throughout the greater Tampa Bay area including in Hernando County, Pasco County, Pinellas County, Manatee County, Sarasota County, Hillsborough County, and Polk County, FL.
Call (813) 250-0500 today.
This article was last updated on Wednesday, September 25, 2024.
