On February 16, 2014, Florida’s Fifth District Court of Appeal issued its opinion in Florida v. Thomas, affirming the decision of the Circuit Court of Orange County declaring a portion of Florida’s “Counterfeiting a Payment Instrument” statute unconstitutional as an improper strict liability statute. A copy of the Court’s decision can be read here.
The Thomas case centered around the constitutionality of a portion of Florida Statute 831.28(2)(a) which makes it a crime to merely possess, without intent, a counterfeit payment instrument. Section 831.28(2)(a) states:
It is unlawful to counterfeit a payment instrument with the intent to defraud a financial institution, account holder, or any other person or organization or for a person to have any counterfeit payment instrument in such person’s possession. Any person who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
As the District Court explained, § 831.28(2)(a) consists of two subparts: “the first makes it unlawful for a person to counterfeit a payment instrument with intent to defraud, but the second makes it unlawful for a person simply to possess any counterfeit payment instrument.” It was this second subpart that Thomas challenged as a facially unconstitutional strict liability statute.
On appeal, the State argued that in creating the “possession” portion of the statute, it was the Legislature’s intent to make it unlawful for a person to possess a counterfeit payment instrument with the intent to defraud. However, the District Court found that such an argument was belied by the plain language of the statute. As explained by the District Court, “it may be true that the Legislature meant to include ‘intent to defraud’ as an element of the possession offense but did not pay close enough attention to the manner in which the statute was drafted.” The District Court noted that the statute as written not only criminalizes possession with intent to defraud but also the innocent possession of a counterfeit payment instrument. Therefore, the District Court found that “[c]riminalizing the mere possession of counterfeit payment instruments criminalizes behavior that is otherwise inherently innocent and thus violates substantive due process.” However, the District Court concluded its opinion by explaining how the Legislature could correct its error: “Simply by drafting the statute to include an intent to defraud, the Legislature can accomplish its purpose without infringing on innocent or protected conduct.”
While the District Court’s decision will not ring the death knell for all strict liability offenses, the decision did reemphasize the limits placed on the Legislature by the Florida Constitution in interfering with the individual rights of Florida residents. As explained, “[w]here the individual rights at issue are not fundamental rights, the test for the constitutionality of a legislative enactment is whether the means selected by the Legislature have a reasonable and substantial relation to the object sought to be attained and shall not be unreasonable, arbitrary, or capricious.” Citing State v. Saiez, 489 So.2d 1125, 1128 (Fla. 1986). In declaring the possession portion of the statute unconstitutional, the District Court found that criminalization of the mere possession of a counterfeit check regardless of intent was an unreasonable “prohibition of innocent acts in order to reach and secure enforcement of law against evil acts.”