daniel john levitan, - supreme court

Electronical]v Filed 07/31/20l301:00:53 PM ET

RECEIVED, 7/3]/2013 l3:03:33. Thomas D. Hall. C]crk. Supreme Court

IN TH E SUPREME COURT OF FLORIDA

DANIEL JOHN LEVITAN, :

Petitioner,

CASE NO.

L.T. No. I D12-1609/1 D12-1964STATEOF FLORIDA,

Respondent

PETITIONER'S BRIEF ON JURISDICTION

NANCY A. DANIELSPUBLIC DEFENDERSECOND JUDICIAL CIRCUIT

RICHARD M. SUMMAASSI STANT PUBLIC DEFENDERFLA. BARNO. 0890588LEON COUNTY COURTHOUSE301 S. MONROE ST., SUITE 401TALLAHASSEE, FLORIDA 32301(850)[email protected]

COUNSEL FOR PETITIONER

TABLEOFCONTENTS

PAGE(S)

TABLEOFCONTENTS

TABLE OF AUTHORITIES ii

PRELIMINARY STATEMENT

STATEMENT OF THE CASE AND FACTS 2

SUMMARY OF THE ARGUMENT 3

ARGUMENT 4

This Court should exercise jurisdiction because the district court'sdecision expressly declares valid a state statute and the question whetherthe statute violates double jeopardy is one of great public importance. 4

CONCLUSION 9

CERTIFICATE OF SERVICE 10

CERTIFICATE OF FONT AND TYPE SIZE 10

TABLE OF AUTHORITIES

CASES PAGE(S)

State v. Levitan, Slip op. 1D12-1609-1D12-1964 at p. 7(Fla. 1" DCA, July 16, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

State v. T.G., 800 So. 2d 204, 210 n. 4 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 8

Williams v. State, 38 Fla. L. Weekly S99 (Fla. May 10, 2013) . . . . . . . . . . . . . . . 7

STATUTES

Section212.15,FloridaStatutes ....................................... 8

Section775.0844,FloridaStatutes ...............................3,4,6,7

Section775.0844(2),FloridaStatutes...................................5




Section 775.0844(7), Florida Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5


Section812.014,FloridaStatutes ....................................5,8

Section 921.0022(3)(b), Florida Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Section921.0022(3)(i),FloridaStatutes.................................5

11

TABLE OF AUTHORITIES

RULES PAGE(S)

Rule 9.030(a)(2)(A)(i), Florida Rules ofAppellate Procedures . . . . . . . . . . . . . . . 4

111

IN THE SUPREME COURT OF FLORIDA

DANIEL JOHN LEVITAN, :

Petitioner,

v. : CASE NO.L.T. No. 1D12-1609/1D12-1964

STATE OF FLORIDA, :

Respondent. :

PETITIONER'S BRIEF ON JURISDICTION

PRELIMINARY STATEMENT

DANIEL JOHN LEVITAN was the defendant in the trial court and the

appellee/cross-appellantbefore the First District Court ofAppeal. He will be referred

to herein by name. The opinion ofthe First District Court is State v. Levitan, Slip op.

1D12-1609-1D12-1964 (Fla. 1" DCA, July 16, 2013), and is attached as an appendix

to this brief.

1

STATEMENT OF THE CASE AND FACTS

Petitioner, Daniel John Levitan, was convicted by ajury often Counts ofgrand

theft (section 812.014, Florida Statutes) for theft of sales tax receipts, and one count

ofaggravated white collar crime (section 775.0844, Florida Statutes). The ten Counts

of grand theft constituted the predicate offenses for the conviction for aggravated

white collar crime. Upon Mr. Levitan's motion, the trial court found that multiple

convictions for the underlying thefts and the aggravated white collar crime violated

double jeopardy. The trial court, therefore, granted Levitan's motion for judgment

of acquittal on the ten underlying theft Counts.

The State of Florida appealed the trial court's acquittal on double jeopardy

grounds and Mr. Levitan cross-appealed his judgment and sentence for one Count of

aggravated white collar crime. By decision issued June 13, 2013, the district court

agreed with the State and held that the aggravated white collar crime statute does not

violate double jeopardy by authorizing multiple convictions for white collar crime

and its predicate offenses. The district court also denied Mr. Levitan's cross-appeal

without explanation.

Mr. Levitan filed a timely motion for rehearing and clarification. By order

dated July 16, 2013, the district court denied Levitan's motion for rehearing but

issued a corrected opinion. (Appendix).

2

Mr. Levitan seeks discretionary review in this Court on the ground that the

district court's corrected decision expressly declares valid a state statute.

SUMMARY OF THE ARGUMENT

This Court has discretionary jurisdiction to review decisions of the district

courts which expressly declare valid a state statute. This Court should accept

jurisdiction because the question whether the aggravated white collar crime statute

violates double jeopardy by authorizing multiple punishments for aggravated white

collar crime and its predicate offenses is fairly debatable and is likely to occur with

regularity. It is reasonably argued that aggravated white collar crime is merely a

sentencing enhancement statute because the focus of the statute is to increase the

Offense Severity Level on the guidelines scoresheet and authorize harsh monetary

punishment. The issue is of great concern not only to Mr. Levitan, but to countless

persons and businesses throughout the State ofFlorida who wish to be fairly apprized

ofpotential punishments under section 775.0844, Florida Statutes, and its predicate

offenses.

3

ARGUMENT

This Court should exercise jurisdiction because the

district court's decision expressly declares valid a state

statute and the question whether the statute violates

double jeopardy is one of great public importance.

The decision below confers jurisdiction on this Court because it expressly

declares valid a state statute. Fla.R.App.P. 9.030(a)(2)(A)(i). In the decision below,

the district court held that section 774.0844, Florida Statutes, does not violate double

jeopardy by authorizing multiple punishments for aggravated white collar crime and

its predicate offenses.

We . . . hold that Levitan could be convicted of bothaggravated white collar crime and the predicate grand theftoffenses without violating double jeopardy.

State v. Levitan, Slip op. 1D12-1609-lD12-1964 at p. 7 (Fla. 1" DCA, July 16,

2013)(as corrected on motion for rehearing).

Although the district court declined to so certify, the double jeopardy question

is one of great public importance. A great many persons and businesses state-wide

will suffer uncertainty as to the potential penalties for the commission ofthe predicate

offenses enumerated in section 775.0844, Florida Statutes, if this Court does not

render a state-wide ruling on the matter.

4

To illustrate the point, if the defendant is convicted two "white collar crimes,"

e.g., grand theft (between $300 and $5,000), each offense is a third degree felony

punishable by a maximum term of 5 years m prison. Each offense is scored as a

Level 2 offense on the guidelines scoresheet. § 921.0022(3)(b), Fla. Stat. However,

the conviction on two such Counts qualifies as an "aggravated white collar crime."

§ 775.0844(4), Fla. Stat. Under this statute, the penalty is enhanced by punishing the

offenses, collectively, as a Level 9 offense on the guidelines scoresheet and by

authorizing a fine of $500,000.00. §775.0844(6) & (7), Fla. Stat.; § 921.0022(3)(i),

Fla. Stat. If punished separately as two grand thefts (Level 2), the primary offense

would score 10 points and the additional grand theft would score 1.2 points for a total

of 11.2 points. In contrast, if punished as a single aggravated white collar crime

(Level 9), the crime scores 92 points. Punishment as a single aggravated white collar

crime thus serves the stated Legislative intent to "enhance the sanctions imposed for

non-violent frauds and swindles." § 775.0844(2), Fla. Stat.

Consider another illustration. Suppose a person is convicted of twenty third

degree thefts of $2,500 under section 812.014, Florida Statutes. The maximum

penalty for each is five years in prison, but the trial court will ordinarily possess the

discretion to order all 20 counts to be served concurrently. Under section

775.0844(5), however, the aggregate theft of $50,000 must be punished as a first

5

degree felony (section 775.0844(5)(c)), and authorizes a fine of$500,000.00 (section

775.0844(7)). If punished separately as twenty grand thefts (Level 2), the primary

offense would score 10 points and the additional 19 grand thefts would score 22.8

points for a total of 32.8 points. In contrast, ifpunished as a single aggravated white

collar crime (Level 9), the crime scores 92 points. Punishment as a single aggravated

white collar crime thus serves the stated Legislative intent to "enhance the sanctions

imposed for non-violent frauds and swindles" by increasing the presumptive

sentencing range. Punishment under section 775.0844, Florida Statutes, also

enhances the degree of offense to a first degree felony and further authorizes the

extremely harsh monetary penalty of $500,000.00.

Reasonable jurists differ as to whether section 775.0844, Florida Statutes,

violates double jeopardy by authorizing multiple convictions for aggravated white

collar crime and its predicate offenses. The controversy was demonstrated in the

present case, in which the trial court ruled that imposition of multiple punishments

for aggravated white collar crime and its predicate offenses violate double jeopardy.

The controversy is also fueled by the reasonable contention that section

775.0844, Florida Statutes, does not authorize multiple punishments for aggravated

white collar crime and its predicate offenses. Nothing in the plain language of the

statute authorizes multiple punishments for the aggravated white collar crime and its

6

predicate offenses. The statute merely authorizes punishment of the predicate

offenses collectively, and more harshly. Compare section 775.0844, Florida Statutes,

with section 775.0877(3), Florida Statutes, which authorizes punishment of the

enhanced offense and its predicate offenses by inclusion of the following specific

provision:

A person may be convicted and sentenced separately for aviolation of this subsection and for the underlying crimeenumerated in paragraphs(l)(a)-(n).

§ 775.0877(3), Fla. Stat.

Because ofthe great debate in the interpretation of this statute, and the need for

a uniform rule throughout the State, this Court should accept jurisdiction of the case.

ADDITIONAL ISSUES

If this Court accepts jurisdiction of the case, the Court possesses jurisdiction

to review the entire case. Williams v. State, 38 Fla. L. Weekly S99 (Fla. May 10,

2013). In the district court, Levitan argued that his conviction for aggravated white

collar crime was fundamentally erroneous because the white collar crime requires at

least two predicate convictions. In this case, Levitan has multiple predicate

convictions only because the State charged one Count of theft for each month of

unpaid sales tax. The imposition of multiple convictions based upon monthly units

7

of prosecution constitutes fundamental error. The unit of prosecution was arbitrary

and erroneous. Where a party has a continuing obligation to remit sales tax to the

Department ofRevenue, the claim of theft is a single claim or Count with the total of

the claimed theft considered in the aggregate. Thus, Mr. Levitan can be guilty ofonly

one Count of theft. This Court can consider claims of fundamental error. See, eg,

State v. T.G., 800 So. 2d 204, 210 n. 4 (Fla. 2001). This issue is of extreme

importance as the charge of theft of sales tax is quite common. The Court should

exercise jurisdiction to consider this issue.

In the district court, Mr. Levitan argued fundamental error on the ground that

the Florida Legislature intended section 212.15, Florida Statutes, as the exclusive

means of prosecuting theft of sales tax. In the present case, Mr. Levitan was

convicted under section 812.014, Florida Statutes. This Court should exercise

jurisdiction to resolve this critical question.

In the district court, Mr. Levitan argued fundamental error on the ground that

he had no ownership interest in the business entity responsible for remitting sales tax

and no personal liability to remit sales tax under any circumstances to the Department

of Revenue. The owners of the restaurant, Finnegan's Wake, entered into an

agreement with the Department of Revenue to collect and remit sales tax. Levitan

was not a party to that agreement and, therefore, had no obligation to remit sales tax

8

to the Department of Revenue. The decision below is unprecedented insofar as it

extends criminal liability to a manager of a business for failure to remit sales tax to

the Department ofRevenue when the manager owes no duty to the Department. The

decision below poses serious adverse consequences to the conduct of retail business

in the State of Florida because it establishes a theory of criminal liability for any

employee who collects sales tax and fails to remit such tax to the Department of

Revenue. For example, the waiters and waitresses of Finnegan's Wake may, under

this decision, be held liable for theft because they "collected" sales tax revenue and

failed to remit the funds to the Department of Revenue. Similarly, any banking

institution which processes credit and debit card payments may be found guilty of

theft of sales tax because the bank "collected" sales tax and failed to remit the funds

to the Department ofRevenue. This Court should exercise jurisdiction to resolve this

critical issue.

CONCLUSION

Based on the foregoing argument and supporting authority, this Court should

exercise its discretion and accept jurisdiction to review the decision of the First

District Court of Appeal which expressly declares valid a state statute.

9

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished by

electronic mail to Joshua Heller, Office of the Attorney General, the Capitol, at

[email protected], as agreed by the parties, and by U.S. Mail to

Appellant, Mr. Daniel Levitan, Booking No. ECSOl3JBN009132, Escambia County

So Detention Division, P.O. Box 17800, Pensacola, FL 32522, on this § / day of

July, 2013.

CERTIFICATE OF FONT AND TYPE SIZE

I hereby certify that this brief was typed using Times New Roman, 14 point.

Respectfully submitted,

NANCY A. DANIELSPUBLIC DEFENDERSECOND JUDICIAL CIRCUIT

RICHARD M. SUMMAAssistant Public DefenderFla. Bar No. 0890588Leon County Courthouse301 S. Monroe St., Suite 401Tallahassee, Florida 32301(850) [email protected]

COUNSEL FOR PETITIONER

10

e

APPENDIX

�042

DISTRICT COURT OF APPEAL, FIRST DISTRICT2000 Drayton Drive

Tallahassee, Florida 32399-0950Telephone No. (850)488-6151

July 16, 2013

CASE NO.: 1D12-1609, 1D12-1964L.T. No.: 1709CF003786A

State of Florida v. Daniel John Levitan

Appellant / Petitioner(s), Appellee / Respondent(s)

BY ORDER OF THE COURT:

Appellee/Cross-Appellant's motion for Rehearing, Clarification and Certification of Questionof Great Public Importance, filed June 27, 2013, is denied in light of the corrected opinionissued contemporaneously with this order. The only change in the opinion is on page 2 wherethe word "all" has been substituted for the word "any" in the third sentence of the secondparagraph.

The motions for leave to appear as amicus curiae and motions for enlargement of time to filemotion for rehearing, filed by Finnegan's Wake Irish Pub and Eatery and the FloridaRestaurant and Lodging Association on June 28, 2013, are denied.

I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.

Served:

Hon.Pamela Jo Bondi, A.G. Hon.Nancy A.Daniels, P.D. John Dubose, A.S.A.Richard M.Summa, A.P.D. Joshua R.Heller, A.A.G. Brooke Poland, A.A.G.Christine Sue Cook Travis Atkinson A.P.D. Steven R. SerraHon.Pam Childers, Clerk Elaine B.Seay

am

Jo(/S. WHEELER, CLERK

IN THE DISTRICT COURT OF APPEALFIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA, NOT FINAL UNTIL TIME EXPIRES TOFILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D12-1609

DANIEL JOHN LEVITAN, CORRECTED PAGES: pg 2

CORRECTION IS UNDERLINED IN

Appellee. REDMAILED: July 16, 2013BY: SDE

DANIEL JOHN LEVITAN,

Appellant,

v. CASE NO. 1D12-1964

STATE OF FLORIDA

Appellee.

/

Opinion filed June 13, 2013.

An appeal from the Circuit Court for Escambia County.W. Joel Boles, Judge.

Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant AttorneyGeneral, Tallahassee, for Appellant.

Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant PublicDefender, Tallahassee, for Appellee.

WETHERELL, J.

In these consolidated appeals, the State seeks review of an order granting

Daniel John Levitan a judgment of acquittal (JOA) on ten counts of grand theft on

double jeopardy grounds, and Levitan seeks review of his conviction for

aggravated white collar crime. We find no merit in the issues raised by Levitan

and affirm his judgment and sentence for aggravated white collar crime without

further comment. We do, however, find merit in the State's argument that the trial

court erred in granting a JOA on the grand theft counts and, for the reasons that

follow, we reverse and remand for entry ofjudgment and sentence on those counts.

Levitan opened Finnegan's Wake Irish Pub and Eatery in Pensacola in

November 2007. Levitan's wife and two others were listed as the owners of the

business, but the evidence presented at trial established that Levitan was

responsible for all of the day-to-day operations of the business, including the

collection and remission of sales tax to the Florida Department of Revenue (DOR).

The evidence further established that Levitan failed to remit all of the sales tax

collected by the business for the months of December 2007, January 2008,

February 2008, March 2008, April 2008, June 2008, July 2008, August 2008,

September 2008 and October 2008, and instead he used those funds to pay

operational expenses of the business. The sales tax not remitted for these months

totaled more than $88,000.

2

In August 2009, after DOR's civil collection efforts proved unsuccessful, the

State charged Levitan with ten counts of grand theft, one count for each month that

he failed to remit the sales tax collected by the business. The information was

subsequently amended to include one count of aggravated white collar crime under

section 775.0844, Florida Statutes (2007),1 with the grand thefts serving as the

Section 775.0844 provides:

(2) Due to the frequency with which victims, particularly elderlyvictims, are deceived and cheated by criminals who commitnonviolent frauds and swindles, frequently through the use of theInternet and other electronic technology and frequently causing theloss of substantial amounts of property, it is the intent of theLegislature to enhance the sanctions imposed for nonviolent fraudsand swindles, protect the public's property, and assist in prosecutingwhite collar criminals.

(3) As used in this section, "white collar crime" means:

(a) The commission of, or a conspiracy to commit, any felonyoffense specified in:

* * *2. Chapter 812, relating to theft, robbery, and related crimes.

* * *(4) As used in this section, "aggravated white collar crime" means

engaging in at least two white collar crimes that have the same orsimilar intents, results, accomplices, victims, or methods ofcommission, or that are otherwise interrelated by distinguishingcharacteristics and are not isolated incidents, provided that at least one

of such crimes occurred after the effective date of this act.(5) Any person who commits an aggravated white collar crime as

defined in this section and in so doing either:

* * *(c) Victimizes the State of Florida, any state agency, any of the

3

predicate offenses for this charge. After a three-day trial at which Levitan

represented himself, the jury found Levitan guilty of all eleven counts.

At the sentencing hearing, Levitan, through counsel, made an ore tenus

motion for a JOA on the grand theft counts on double jeopardy grounds.2 Levitan

argued that the offense of aggravated white collar crime contained the elements of

the predicate offenses and, because the grand thefts formed the basis of the charge

for the aggravated white collar crime count, he was twice placed in jeopardy for

the same offense. The trial court agreed and granted a JOA on the grand theft

counts, finding that the ten counts of grand theft were "lesser offenses of" and

"subsumed within" the offense of aggravated white collar crime. The trial court

adjudicated Levitan guilty of aggravated white collar crime and sentenced him to

state's political subdivisions, or any agency of the state's politicalsubdivisions,and thereby obtains or attempts to obtain $50,000 or more, commits afelony of the first degree, punishable as provided in s. 775.082, s.775.083, or s. 775.084.

2 The issue was raised in a pro se motion to dismiss filed by Levitan, but at thesentencing hearing his counsel explained:

I'm not making a motion to dismiss, Your Honor. I'marguing to the Court that the Court must JOA . . . the tencounts of grand thefts based on the fact that it would be aviolation of double jeopardy as those counts aresubsumed within the aggravated white collar crime.

4

10 years in prison followed by 20 years of probation consecutive to a sentence

imposed in another case.3

On appeal, the State argues that the trial court erred in granting a JOA on the

grand theft counts on double jeopardy grounds because aggravated white collar

crime is a distinct offense that the legislature clearly intended to punish separately

from its predicate offenses. We review this issue de novo. See McKinney v. State,

66 So. 3d 852, 853 (Fla. 2011) ("A double jeopardy claim based upon undisputed

facts presents a pure question of law and is reviewed de novo.") (quoting Pizzo v.

State, 945 So. 2d 1203, 1206 (Fla. 2006)).

The issue framed by the State's appeal was squarely addressed by our sister

court in Headley v. State, 90 So. 3d 912 (Fla. 3d DCA 2012).4 In that case, the

court held that a defendant could be convicted of both aggravated white collar

crime and the predicate offenses without violating double jeopardy because the

language and structure of section 775.0844 reflect a clear statement of legislative

intent to authorize separate punishments. Id. at 913. The court explained:

[Section 775.0844] and the Florida RICO Act aresimilarly constructed, and both were enacted to allow forprosecution of the major offense as well as the predicateoffenses. Both statutes establish an offense in which it isimplicit that the defendant has committed a number of

3 The judgment and sentence in the other case was subsequently reversed by thisCourt in Levitan v. State, 100 So. 3d 776 (Fla. 1st DCA 2012).4 The trial court did not have the benefit of the Headley opinion when it ruled onLevitan's ore tenus motion for a JOA.

5

predicate offenses. Compare § 775.0844(3)-(4), with §895.02. It has been previously held by Florida courts thatbeing convicted of RICO as well as the necessarily lesserincluded offenses does not violate double jeopardy. ,3 Gross v. State, 728 So.2d 1206, 1208 (Fla. 4th DCA1999); Haggerty v. State, 531 So.2d 364, 365 (Fla. 1stDCA 1988). The legislative intent in adopting the whitecollar crime statute was to "enhance sanctions imputedfor nonviolent frauds and swindles, protect the public'sproperty, and assist in prosecuting white collarcriminals." § 775.0844(2). As with RICO, the whitecollar crime statute was geared toward prosecuting thoseindividuals who engage in a pattern of committing felonyoffenses involving fraud and deceit. See § 775.0844(4)(defining "aggravated white collar crime"); see alsoCarroll v. State, 459 So.2d 368, 370 (Fla. 5th DCA 1984)(recognizing that by establishing RICO, the legislatureintended to punish those who engage in a pattern ofcriminal activity more severely than those who onlycommit the predicate offenses).

Additionally, analyzing the white collar crime statute'slanguage and structure, as in Garrett, Headley's doublejeopardy rights were not violated as a result of beingconvicted of aggravated white collar crime and thepredicate offenses. Garrett [v. United States), 471 U.S.773, 105 S.Ct. 2407, 85 L.Ed.2d 764 [(1985)](recognizing that the legislature intended CCE to be aseparate offense and to permit prosecution for predicateoffenses as well as CCE, and concluding that convictionsfor both does not violate double jeopardy). As with CCE,the legislative intent in establishing section 775.0844 wasto create a separate and distinct offense, see State v.Traylor, 77 So.3d 224, 226 (Fla. 5th DCA 2011)(recognizing that charging a defendant with aggravatedwhite collar crime is a "distinct" new count, separatefrom any predicate offenses previously charged); there isno reference in the statute to a multiplier of a penalty forsome other offense; the punishment set forth in thestatute does not reference its predicate offenses; and the

6

definition of aggravated white collar crime is not draftedin the way that a recidivist provision would be drafted.See Garrett, 471 U.S. at 778, 781-82, 105 S.Ct. 2407.

Id. at 914-15.

We agree with this reasoning and, consistent with Headley, hold that Levitan

could be convicted of both aggravated white collar crime and the predicate grand

theft offenses without violating double jeopardy. Accordingly, we reverse the

order granting a JOA on the ten grand theft counts and remand for the trial court to

enter judgment and sentence on those counts. Levitan's judgment and sentence is

otherwise affirmed.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

ROWE and MAKAR, JJ., CONCUR.

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daniel john levitan, - supreme court

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