In Florida nonviolent crimes such as grand theft and scheme to defraud often result in lengthy prison sentences especially when the amount allegedly taken is significant. Yet inflation has diminished the actual damage amount values in real terms from statutes that were created decades ago.
For a grand theft third degree felony it only takes a theft amount of over $300, but if the amount is over $20,000 then a second degree grand theft charge can be triggered and should the amount be over $100,000, then a first degree felony will be charged. Any scheme to defraud charge begins as a second degree and can escalate further based on overall amount of the fraud, the number of victims or the complexity of the fraud. The problem with any second degree felony is that it automatically will result in a guideline range that calls for time in jail or prison. And this is true despite the fact that these cases are nonviolent acts for which prison time brings no benefit to the victim nor to society.
Rather than blindly accepting the statutory loss amounts, you’d think smart sentencing judges would gladly accept evidence of the loss amount in real terms after inflation in their sentencing calculations; thus lowering the sentencing guidelines as well as the charged felony degree in many theft cases. But the prosecutor, dressed in black today, would object on the grounds that if there was a deflationary period, the defense would never accept anything less than the sum denominated in the statute. And the judge would agree because in Florida the guidelines and scoresheets determine the sentencing outcome.
Until Florida guidelines and scoresheets are altered by the legislature to accurately reflect inflationary loss amounts, it will be necessary to remind the sentencing judge of the passage of time since the statutes became law while establishing why a sentence under the guideline range is appropriate under the circumstances of the case. For example, the law in Florida specifically allows a judge to go under the sentencing guidelines if doing so will allow the victim to receive restitution. So that in many theft cases that may trigger a sentence of prison, it becomes a race against the clock to make a good showing to the sentencing judge that restitution can be paid.
It was revealed today that a $5,000 pair of shoes signed by local celebrity Hulk Hogan was stolen from his fancy beach store. It was also revealed that during the theft, possibly in a ruse to divert attention, a statue of Hulk Hogan was shattered to pieces. Oh, these are desperate times in Tampa Bay, Florida, yet of one thing we may be certain, Hulk Hogan was not in the store at the time otherwise the perpetrator would have been bagged and body slammed.
|Charlie Chaplin eats his Shoe
If the culprits are captured and charged, what is a fair way to assess the value of the stolen shoes? In Florida a third degree grand theft charge can be levied for any object valued at $300 or more, if less than $300, then the appropriate charge would be a misdemeanor petit theft. What if something of even greater value had been taken from the store such as Hulk Hogan’s bandanna rather than just an old pair of his signed shoes? If the value of the bandanna was more than $20,000 then the theft would be assessed as a grand theft second degree felony.
The higher the offense charged the more likely it is that jail will be ordered as punishment. And as you can see by how the charges are defined, it is the value of the property stolen that often dictates whether a case is resolved with or without prison time in Tampa Bay Florida.
Yet the fact that Hulk Hogan’s beach store sells his signed shoes for $5,500 doesn’t necessarily mean they have an assessable value of $5,500. In fact, the thief may have thought the value so absurd that the shoes were taken as a joke. Value is more than what a victim says it is. The investigating officers and the Pinellas State Attorney’s Office should look to find a reasonable actual value. One way to do that would be to make inquiry’s from the store as to how many pairs of signed shoes have been sold and if so, for how much. In far too many grand theft cases law enforcement fails to make a complete investigate of value, because their focus is on solving the crime. Also, officers or prosecutors will add further charges such as scheme to defraud in an effort to force defendant’s to plead guilty.
But what about the possible criminal mischief charge against the thief for that shattered statue of Hulk Hogan? Like theft charges, criminal mischief charges are based on value, but with criminal mischief it is based on the actual value of the object destroyed or the value to repair an object. Making a calculation of actual value is arguable and problematic. Is it merely replacement value or is it something more, say the value of the statue to the Tampa Bay community – priceless or valueless? And if the statue of Hogan is repairable there’d still need to be an assessment of any value lost after the repair compared to the value before the destruction.
Recently in Miami, Florida a museum’s pottery piece on loan from China was intentionally destroyed by an art protestor. Upon the vandal’s arrest the investigating officer was unable to ferret out from the museum staff what the actual value of the pottery actually was, so he simply wrote one million dollars in his police report causing sensational international press reports. The actual value turned out to be assessed for much less, but the potter in China must be smiling.
As you can see in grand theft cases as well as criminal mischief cases value is often an elastic notion. It’s important that a lawyer be prepared to exploit value weaknesses with expert testimony in order to have a felony or misdemeanor charge reduced or dismissed based on actual value.
Your favorite Clearwater Criminal Defense Lawyer feels fortunate when fate, providence and sheer blind luck somehow combine to send that stray twenty dollar bill his way close enough to pocket it now and then.
How much better it would be to possess a very rare and unusual $500 million United States Treasury Reserve Bank Note from the 1930s. Unfortunately the Florida Defendant’s fancy U.S. Treasury Reserve Bank Note proved to be fake.
|$100,000 Bill, 1934: Largest Ever Issued
The man was charged with Federal Scheme to Defraud when he supplied not only the bank note but along with it, an actual old bank safe vault holding the note providing an authentic provenance during what must have been a weighty FBI sting.
The federal sentencing guidelines as reflected in the Presentencing Investigation Report recommended at least 42 months of Federal prison.
Press Reports note that the Florida Federal Judge decided to show mercy for an unusual reason not normally found in the Federal Sentencing Guidelines instead:
“It becomes almost laughable,” the judge said. “To me, it doesn’t promote respect for the law to send someone to prison … for doing something so silly and outrageous.”
The judge sentenced Ayison to six months of house arrest, five years of probation and 250 hours of community service and must also undergo a psychiatric evaluation…
That psychiatric evaluation sounds like a great idea, but so does showing some merciful discretion in a case like this where the absurd facts clearly led the Court to consider that jail in this case was inappropriate.
There’s a lesson here for defense counsel. If an underlying criminal charge or the facts and circumstances of a case gives the judge a smile, he’ll find it difficult to give the Defendant prison. More of the best Judges are wisely using their sentencing discretion to reduce unnecessary prison time in cases like this one.
Your Clearwater Criminal Defense Attorney suggests that when a guy comes to you with a fancy antique safe and a $500 million United States Treasury Bank Note, you should remember that Federal prosecutors told the Judge that there is no such thing as a genuine half-billion dollar U.S. Bank Note, but that antique safe might be worth something.
What should you do if you find you have an active arrest warrant issued from another state? Here’s a question your Clearwater Criminal Defense Lawyer was recently asked:
I’m very scared of being arrested for something I didn’t do. What happens when another state issues an arrest warrant? I moved to Florida several years ago. I’ve just found out that there is a felony arrest warrant for Fraud or Scheme to Defraud in Atlanta, Georgia. From what I can figure out the warrant was issued from the company I used to work for and is a misunderstanding that I thought was already cleared up and I have the paperwork to prove it. Will Florida police arrest me for this? If I’m innocent can I resist the arrest? What should I do?
|Renoir, The Oarsmen, 1879
You may think it was just a ‘misunderstanding’ in Georgia, I hope for your sake you’re right, but a Georgia Judge signed an arrest warrant based on probable cause that you committed Felony Fraud in Georgia. You’ll need to hire an attorney in Georgia to persuade the prosecutor that the criminal case against you should be dismissed. Prosecutors in Georgia will not likely look into your case until after you turn yourself in, make a court appearance and only then will you be allowed to seek a bond.
If you choose not to turn yourself in to Georgia authorities, then you need to understand that at anytime you may be stopped by Tampa Bay Police and arrested in Florida as an arrest warrant from another state will be honored by Florida law enforcement.
Although it’s true that you can resist an unlawful arrest in Florida without using violence, a Florida arrest based on a warrant from Georgia will be deemed lawful and any attempt to resist the arrest will result in Florida criminal charges of resisting arrest without violence.
If you are arrested under the Georgia warrant in Florida, you will be kept in detention without a bond as you’ll be deemed a flight risk. Instead Florida will contact Georgia to determine if Georgia wants you to be extradited back to Georgia to face the Felony Fraud charge. In Florida you will be given an extradition hearing to determine if Georgia has the right bring you back and that you are the person whom Georgia seeks with matching fingerprints or DNA. At an extradition hearing a Clearwater Criminal Defense Attorney could argue any false identity issues, but will not be permitted to argue the underlying merits of the Felony Fraud or Scheme to Defraud case against you nor your innocence as those issues are for a Georgia Court to determine.
The smartest thing for you to do is not to wait for the arrest warrant to come to you, rather you must go to it by cleaning up the matter in Georgia immediately.
Caveat Emptor: The Secret Life of an American Forger is a new memoir from Florida’s master art forger, Ken Perenyl. In the memoir the author almost admits to a series of crimes which could constitute a criminal conspiracy of grand theft and scheming to defraud. The painter believes that he is immune from prosecution because of the statute of limitations; it’s hoped he vetted all of his admissions before publication not with a priest but with a Clearwater Criminal Defense Attorney.
|The Artist working in Madeira Beach, Florida
But is the master forger really free from the threat of prosecution? A defense argument can be made that the forgeries are not forgeries at all in that he copied the style, formula and subject matter for secondary artists rather than copy known paintings and let others jump to conclusions and that any evidence of wrongdoing is circumstantial.
But what about the money? Press accounts of the memoir indicate that the expert art forger made a significant amount of money from the crimes. How he accounted for the money could directly affect how the statute of limitations would apply in his case. Further, it appears that he is still painting fakes, but listing them as fakes in a wonderfully worded convoluted waiver in his sales slips, which might not be sufficient to stop fraud allegations if the prices he sells the paintings are enhanced because of high resale value as genuine paintings especially if a reasonable person would believe that the paintings would later be sold as genuine. But even if he were prosecuted and punished would jail really be appropriate for his crimes.
Here are some excerpts from the Gaurdian Newspaper’s account.
An extraordinary memoir reveals how a gifted artist managed to forge his way to riches by conning high-profile auctioneers, dealers and collectors over four decades tells the story of Ken Perenyi, an American who lived in London for 30 years. The revelations within it are likely to spark embarrassment on both sides of the Atlantic as “a bombshell for the major international auction houses and galleries.”
Perenyi’s specialities included British sporting and marine paintings of the 18th and 19th centuries. He concentrated on the work of well-known but second-rank artists, believing that the output of the greatest masters is too fully documented. Dealers were often told he had found a picture in a relative’s attic or spotted it in a car boot sale.
Perhaps Perenyi’s proudest moment came when a forgery of Ruby Throats with Apple Blossoms, by the American 19th-century artist Martin Johnson Heade, made the front page of a national newspaper and was heralded as a major “discovery”selling for nearly $100,000 at auction in New York.Perenyi believes he is free finally to publish his story because, although he was investigated by the FBI, the case was closed in 2003 and is subject to the statute of limitations. He said he has never discovered why the case was dropped, but he suspects the art world may have been keen to prevent the exposure of the serial forgeries.
His love of painting and the old masters remains undimmed and today he owns a studio in Madeira Beach, Florida. Asked if he regrets not finding recognition as an artist in his own right, he said: “I’ve often pondered that myself. But to have equalled the hand of such artists as Herring and Buttersworth and many others is for me a tremendous satisfaction.”
If you’ve been forging great works of art while the FBI is looking over your shoulder, call Clearwater Criminal Defense Lawyers who will paint a picture of your innocent nature for the Judge and Jury.
Remember the eternal bliss of summer vacation when you were a child, wearing your new yellow rain hat even on the brightest sunny day in Tampa Bay Florida because you were so proud of it – your favorite Clearwater Criminal Defense Lawyer doesn’t remember that either but why should I be expected to remember something from your life as I can hardly recall mine? For your grandmother that summer was a prelude to her lonely gray winter ending as quickly as the bowl of melting ice cream you shared with her (make mine an Italian chocholate macadamia nut, please).
The passage of time is the very measure of our lives. As we age the perception of time passing speeds for each of us as the taper of our lives burns ever faster.
Since people at different times in their lives perceive the passage of time differently, doesn’t that imply that say, a five year sentence of jail to a twenty year old man is, if not harsher, certainly felt subjectively as being in actual time longer, than the same five year sentence given to the sixty year old convicted of a white collar crime, scheme to defraud or embezzlement (who happily, unlike the twenty year old, can actually pay me)?
But what if the twenty year old is a new mother? How will those five years be felt by her and by her innocent child? And wouldn’t incarceration affect a youthful offender or juvenile much differently than someone of another age. Yet the courts tend to treat everyone alike especially with Florida Sentencing Guidelines and Florida Sentencing Scoresheets controlling what Judge’s will sentence and reducing judge’s discretion. Shouldn’t a judge be able at sentencing to take these factors into account? Don’t we want our judges to have the ability to occasionally seek out the best solutions for each Defendant?
But today in St. Petersburg, Clearwater, Largo and Tampa Bay, Florida when a judge sentences a Defendant most of the decision-making process with which the judge ought to be entrusted has already been declared out of bounds by Florida Statutes and Federal law, that have made honest, fair, impartial judges subservient to minimum mandatory sentences, mathematical tables and immoveable sentencing guidelines.
Any civilized and rational legal system that even Clearwater Criminal Defense Attorneys could cherish, would allow a judge at sentencing to take many other considerations in hand with the traditional considerations that include the severity of the misconduct, any prior misconduct, and the likelihood of future misconduct.