State v. Nunez
State v. Nunez
Opinion of the Court
This appeal is brought by the State of Florida following a dismissal of a criminal prosecution under Fla. R.Crim. P. 3.190(c)(4). We affirm.
Rafael Nunez (“Nunez”) is a businessman accused of perpetrating fraud on five groups of investors by selling them allegedly worthless code enforcement and minimum housing liens from a pool that his company, Collections USA (“Collections”), purchased from the City of Homestead in 1992.
By 1994, Collections was experiencing more difficulty than it apparently believed it should in collecting on the liens and contacted the City. During the next two years, the City took some ameliorative actions to assist Nunez who by then had assumed ownership of the company in collecting on some liens,
In November 2002, on the heels of the suit against the City of Homestead, the State of Florida by information charged Nunez with first, second and third-degree grand theft, exploitation of the elderly or disabled, and perpetrating a scheme to defraud for knowingly selling allegedly bogus Homestead liens to the investor-victims herein during 1998 and the first half of 1999. In May 2003, Nunez filed a Corrected Sworn Motion to Dismiss under Fla. R.Crim. P. 3.190(c)(4), asserting that the liens he sold to the investors through Collections were valid. In support of his position, Nunez cited the pretrial examination of Homestead City Attorney, Michael Watkins, who testified in the civil action that to the best of his knowledge the liens were valid and properly recorded, and therefore presumably just as collectible by Collections as by the City.
Our case law is quite clear that Fla. R.Crim. P. 3.190(c)(4) motions to dismiss are treated like summary judgment motions in civil cases. State v. Kalogeropolous, 758 So.2d 110 (Fla. 2000). The purpose of such a motion is to test the legal sufficiency of the underlying case, i.e. whether there is a dispute of material fact (not just a dispute of unsupported conelu-sory allegations) or whether there exists a legal defense that would summarily decide the case.
In this case, we have studied the States Traverse and we find that it is lacking. First, it is filled with unsupported conclusory allegations. Cf. Hembd v. Dauria, 859 So.2d 1238, 1240 (Fla. 4th DCA 2003) (fraud must not be “flung into [a] ease willy-nilly” by stating “legal conclusions”). Second, the Traverse fails to link the allegedly defective Homestead liens as being one and the same with those which were resold to investors, especially since it is undisputed that Collections realized some profits on the liens it had purchased from Homestead. Cf. Hembd at 1240 (“must clearly and concisely set out the essential facts of the fraud”). Third, the Traverse invites us to make negative conclusions based on the possibility of a signature dispute.
Here, the State has not alleged fraud with the needed particularity. Just because Nunez may have been aware as early as 1994 that there were problems with some of the liens does not necessarily mean that all of the liens were flawed, or that Nunez knowingly resold a lien upon which he suspected an issue of collectibility. Similarly, just because a lien sold to an investor later becomes uncollectible is insufficient alone to establish a prima facie case of criminal fraud; it merely shows that an arguable contractual expectation was disappointed. As the trial court aptly suggested, the disputes between the investors and Collections here are more suited for resolution in a civil forum based upon the evidence presented. See Rodriguez v. State, 396 So.2d 798, 800 n. 7 (Fla. 3d DCA 1981) (a controversy between businessmen stemming from an honest dispute over funds “seems more appropriately the subject of a civil action than a criminal prosecution” for theft), citing Cooper v. State, 82 Fla. 365, 90 So. 375 (1921).
Affirmed.
. At the time of the purchase Collections USA was owned and operated by Nunez’ brother, Alexander Nunez; Rafael Nunez had other full-time employment. Thus, Rafael was not personally involved in the original purchase.
. As a result of its own efforts and with assistance from the City, Collections realized some $200,000 on the liens excluding the transactions entered into with the investors here.
. In fact, the record indicates that one investor received liens not as part of a sale, but as back-up security collateral for monies he had lent to Collections USA, and that the investor himself actually picked out which liens he wanted as part of his security.
. It is the "defendant’s burden to specifically allege and swear to the undisputed facts in a motion to dismiss and to demonstrate that no prima facie case exists upon the facts set forth in detail in the motion.” Siegel, 778 So.2d at 427. In this case, defendant Nunez has met that burden, but the State has failed to meet its burden in its Traverse.
.The record however shows an equivocating investor who could neither identify nor remember if indeed he had signed a particular investment document at issue here.
. In the civil context, considering the high, particularized threshold to state a claim for fraud, it is ironic that in the criminal context, the State sub judice would attempt to spin a fraud on so little here -where one s liberty as distinguished from one's pocketbook is at stake.
Reference
- Full Case Name
- The STATE of Florida v. Rafael NUNEZ
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- 5 cases
- Status
- Published