Opinion
No. 78-1511.
January 19, 1979.
Appeal from the Lee County Circuit Court, John H. Shearer, Jr., J.
Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
Jack O. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
The state filed an information charging appellee, Johnny Wardlow, with a felony violation of § 409.325, Fla. Stat. (1977) which prohibits food stamp fraud. Appellee filed a motion to dismiss the information and the trial court granted the motion. We reverse.
This was appellee's second motion to dismiss. The trial court also granted the first motion, but we reversed. State v. Wardlow, 356 So.2d 901 (Fla.2d DCA 1978).
Section 409.325 provides that if a person fraudulently seeks or receives less than $200 worth of food stamps in a one year period, he is guilty of a misdemeanor, but if he fraudulently seeks or receives $200 or more worth of food stamps within one year he is guilty of a felony. Based upon a stipulated statement of facts the lower court decided that appellee had sought or received only $198 worth of food stamps and so could not be charged with a felony violation of § 409.325.
Section 409.325 Fraud. —
(5)(a) If the value of the assistance or identification wrongfully received, retained, misappropriated, sought, or used is less than an aggregate value of $200 in any 12 consecutive months, such person is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) If the value of the assistance or identification wrongfully received, retained, misappropriated, sought, or used is of an aggregate value of $200 or more in any 12 consecutive months, such person is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083 or s. 775.084.
The pertinent portion of the stipulated statement of facts was as follows:
On February 9, 1977 the defendant went to the Food Stamp Office in Fort Myers, Lee County, Florida and filed for and signed an application for Emergency Food Stamp Benefits. The application is numbered E192 and a certified copy is attached hereto and made part of the record as Exhibit A.
The Emergency Food Stamp application E192 shows the defendant's address as 348 Michigan Court, Fort Myers; the defendant as the head of the household that includes four dependents in addition to his wife, Latricia; and that he or his family members were not certified regular food stamp clients. The application shows it was approved. According to testimony of witnesses, the defendant was eligible for a total of $198.00 in benefits. These funds were never issued. Another Emergency Food Stamp worker, Kathy McQue had another Emergency Food Stamp claimant who filed for and signed an application for Emergency Food Stamps listing the same address as the defendant, 348 Michigan Court. Ms. McQue relayed this information to Bernadette McDaniell, the Emergency Food Stamp Worker on the defendant's Emergency Food Stamp application. Ms. McDaniell took application E192 from the defendant. The next day, February 10, 1977, the defendant again returned to the Food Stamp Office in Fort Myers and filed for and signed an application for Emergency Food Stamp Benefits. The application is numbered E450, a certified copy which is attached and made a part hereof as Exhibit B. On this application, the defendant's address is listed as 633 Michigan Court and the defendant is listed as the head of the household with no dependants. The defendant was issued $50.00 from the cashier.
This statement of facts allows the conclusion that application E450 on February 10 (under which $50 worth of food stamps was received) was neither a part of nor in lieu of application E192 for $198 worth of stamps on February 9. The two applications would thereupon be separate and distinct applications in every way and the $198 sought and the $50 received become separate amounts which must be added together.
Accordingly, we hold that the stipulated facts established a prima facie case that appellee fraudulently sought or received $248 worth of food stamps, and so the trial court should not have granted the motion to dismiss. Fla.R.Crim.P. 3.190(c)(4).
We therefore reverse the order dismissing the information and remand the case for further proceedings consistent herewith.
HOBSON, Acting C.J., and DANAHY, J., concur.