Sentencing for Unlawful Filing of False Documents or Records Against Real or Personal Property

by Hon. William H. Burgess, III, B.C.S.

At the end of April, 2013, the Florida Legislature passed, and has sent on to the Governor for signature, Senate Bill 112, a tough new law aimed at fully criminalizing the filing of false documents or records against real or personal property, and revising penalties for criminal actions under color of law or through use of simulated legal process. The Governor is expected to sign the bill into law in due course.  If signed by the Governor, the law will take effect on October 1, 2013.

There is a perception among more than a few prosecutors and civil attorneys that fraud is widespread in the civil courts, especially in the area of property litigation and that there is little to be done about it. SB 112 is a response to such concerns and is directed at a variety of fraudulent practices being perpetrated in civil court. The bill is directed, in particular, at the practice of filing false financial statements and bogus liens against the property of public officials and employees.¹ While the bill is aimed primarily at non-lawyers and pro se litigants, the provisions of the proposed law are applicable to unscrupulous lawyers as well.
The lesser part of the bill amends section 843.0855, F.S., relating to criminal actions under color of law or through use of simulated legal process, to revise definitions and penalties.

The major part of SB 112 is the creation of Section 817.535, Florida Statutes, which is the main subject of this article. The proposed new Section 817.535 provides for the following:

A person who files or directs a filer to file, with the intent to defraud or harass another, any instrument containing a materially false, fictitious, or fraudulent statement or representation that purports to affect an owner’s interest in the property described in the instrument commits a felony of the third degree, punishable as provided in sections 775.082, 775.083, or 775.084, Florida Statutes.² “File” in this context means to present an instrument for recording in an official record or to cause an instrument to be presented for recording in an official record.³ “Filer” means the person who presents an instrument for recording in an official record, or causes an instrument to be presented for recording in an official record.⁴ “Instrument” means any judgment, mortgage, assignment, pledge, lien, financing statement, encumbrance, deed, lease, bill of sale, agreement, mortgage, notice of claim of lien, notice of levy, promissory note, mortgage note, release, partial release or satisfaction of any of the foregoing, or any other document that relates to or attempts to restrict the ownership, transfer, or encumbrance of or claim against real or personal property, or any interest in real or personal property.⁵ “Official” record means the series of instruments, regardless of how they are maintained, which a clerk of the circuit court, or any person or entity designated by general law, special law, or county charter, is required or authorized by law to record. The term also includes a series of instruments pertaining to the Uniform Commercial Code filed with the Secretary of State or with any entity under contract with the Secretary of State to maintain Uniform Commercial Code records and a database of judgment liens maintained by the Secretary of State.⁶

A person who violates section 817.535(2)(a) a second or subsequent time commits a felony of the second degree, punishable as provided in sections 775.082, 775.083, or 775.084, Florida Statutes.⁷

If a person is convicted of violating section 817.535(2) and the owner of the property subject to the false instrument is a public officer or employee, the offense must be reclassified as follows:

– In the case of a felony of the third degree, to a felony of the second degree, punishable as provided in sections 775.082, 775.083, or 775.084.⁸

– In the case of a felony of the second degree, to a felony of the first degree, punishable as provided in sections 775.082, 775.083, or 775.084.⁹

“Public officer or employee” means, but is not limited to: (1) A person elected or appointed to a local, state, or federal office, including any person serving on an advisory body, board, commission, committee, council, or authority;¹⁰ (2) an employee of a state, county, municipal, political subdivision, school district, educational institution, or special district agency or entity, including judges, attorneys, law enforcement officers, deputy clerks of court, and marshals;¹¹ (3) a state or federal executive, legislative, or judicial officer, employee, or volunteer authorized to perform actions or services for any state or federal executive, legislative, or judicial office, or agency;¹² (4) a person who acts as a general or special magistrate, auditor, arbitrator, umpire, referee, hearing officer, or consultant to any state or local governmental entity;¹³ and (5) a person who is a candidate for public office or judicial position.¹⁴

If a person is convicted of violating section 817.535(2) and the person committed the offense while incarcerated in a jail or correctional institution or while participating in a pretrial diversion program under any form of pretrial release or bond, on probation or parole, or under any postrelease supervision, the offense must be reclassified as follows:

– In the case of a felony of the third degree, to a felony of the second degree, punishable as provided in sections 775.082, 775.083, or 775.084.¹⁵

– In the case of a felony of the second degree, to a felony of the first degree, punishable as provided in sections 775.082, 775.083, or 775.084.¹⁶

If a person’s offense has been reclassified pursuant to section 817.535(4), the sentencing court is required to issue a written finding that the offense occurred while incarcerated in a jail or correctional institution and direct that a copy of the written finding and judgment of conviction be forwarded to the appropriate state institution or county facility for consideration of disciplinary action and forfeiture of all gain time or any early release credits accumulated up to the date of the violation.¹⁷

If the person is convicted of violating section 817.535(2) and the owner of the property covered by the false instrument incurs financial loss as a result of the instrument being recorded in the official record, including costs and attorney fees incurred in correcting, sealing, or removing the false instrument from the official record as described herein, the offense must be reclassified as follows:

– In the case of a felony of the third degree, to a felony of the second degree, punishable as provided in sections 775.082, 775.083, or 775.084.¹⁸

– In the case of a felony of the second degree, to a felony of the first degree, punishable as provided in sections 775.082, 775.083, or 775.084.¹⁹

A person who fraudulently records a claim of lien in the official records pursuant to part I of chapter 713 is subject to the fraud provisions of section 713.31, F.S. and not section 817.535, F.S.²⁰

If a person is convicted of violating section 817.535, the sentencing court is required to issue an order declaring the instrument forming the basis of the conviction null and void and may enjoin the person from filing any instrument in an official record absent prior review and approval for filing by a circuit or county court judge. The sentencing court may also order the instrument forming the basis of the conviction sealed from the official record and removed from any applicable electronic database used for recording instruments in the official record.²¹

Any person adversely affected by an instrument filed in the official record which contains a materially false, fictitious, or fraudulent statement or representation has a civil cause of action under section 817.535 without regard to whether criminal charges are pursued under section 817.535(2). A notice of lis pendens in accord with section 48.23, F.S. must be filed which specifically describes the instrument under challenge and the real or personal property affected by the instrument.²²

Upon a finding that the instrument contains a materially false, fictitious, or fraudulent statement or representation such that the instrument does not establish a legitimate property or lien interest in favor of another person:

1. The court shall determine whether the entire instrument or certain parts thereof are null and void ab initio. If the court finds the instrument void in its entirety, it may order the instrument sealed from the official record and removed from any electronic database used for indexing or locating instruments in the official record. The court may also, permanently or for a period of time, enjoin the defendant who filed the instrument or who directed the filer to file the instrument from filing or directing a person to file an instrument in the official records without prior review and approval for filing by a circuit or county court judge, provided that as to third parties who may have given value for an interest described or granted by any instrument filed in violation of the injunction, the instrument shall be deemed validly filed and provides constructive notice, notwithstanding any failure to comply with the terms of the injunction.²³

2. Upon a finding of intent to defraud or harass, the court or jury must award actual damages and punitive damages, subject to the criteria in section 768.72, to the person adversely affected by the instrument. The court may also levy a civil penalty of $2,500 for each instrument determined to be in violation of subsection (2).²⁴

3. The court may grant such other relief or remedy that the court determines is just and proper within its sound judicial discretion.²⁵

The prevailing party in such a suit is entitled to recover costs and reasonable attorney fees.²⁶

The custodian of any official record must, upon payment of appropriate fees, provide a certified copy of the sealed instrument to the party seeking relief under this section for use in subsequent court proceedings; in addressing or correcting adverse effects upon the person s credit or property rights, or reporting the matter for investigation and prosecution; or in response to a subpoena seeking the instrument for criminal investigative or prosecution purposes.²⁷

Upon request, the custodian of any official record shall, upon payment of appropriate fees, provide a certified copy of the sealed instrument to any federal, state, or local law enforcement agency.²⁸

If feasible, the custodian of the official record where the instrument is recorded shall record any court order finding that the instrument is null and void in its entirety or in certain parts thereof.²⁹

An instrument removed from an electronic database used for recording instruments in the public record pursuant to this section shall be maintained in a manner in which the instrument can be reduced to paper form.³⁰

A government agency may provide legal representation to a public officer or employee if the instrument at issue appears to have been filed to defraud or harass the public officer or employee in his or her official capacity. If the public officer or employee is the prevailing party, the award of reasonable attorney fees shall be paid to the government agency that provided the legal representation.³¹

Section 817.535 does not apply to the procedures for sealing or expunging criminal history records as provided in chapter 943.³²

The sanctions included in the bill are tough. The part of the bill amending section 843.0855, F.S., makes impersonation of a public officer or employee,³³ unlawful simulation of legal process,³⁴ and intimidation of a public officer or employee ³⁵ crimes classified as third-degree felony Level 7 offenses on the Criminal Punishment Code Offense Severity Ranking Chart.³⁶ As to the filing of false documents or records against real or personal property, the bill makes a violation of section 817.535(2)(a) a third-degree felony Level 7 offense, a violation of section 817.535(2)(b), (3)(a), (4)(a)1., or (5)(a) a second-degree felony Level 8 offense, and a violation of section 817.535(3)(b), (4)(a)2., or (5)(b) a first degree felony Level 9 offense. A Level 7 offense scores 56 points as a primary offense on a Criminal Punishment Code scoresheet, a Level 8 offense scores 74 points, and a Level 9 offense scores 92 points, meaning that a defendant charged with any one of these offenses will score above the 44-point minimum beyond which the presumptive sentence is imprisonment.

ENDNOTES

¹ See, e.g., United States v. Leitner, 2011 WL 2532745, No. 3:10cv454/RS/CJK. (N.D. Fla. June 6, 2011).

² Sec. 817.535(2)(a), F.S.

³ Sec. 817.535(1)(a), F.S.

⁴ Sec. 817.535(1)(b), F.S.

⁵ Sec. 817.535(1)(c), F.S.

⁶ Sec. 817.535(1)(d), F.S.

⁷ Sec. 817.535(2)(b), F.S.

⁸ Sec. 817.535(3)(a), F.S.

⁹ Sec. 817.535(3)(b), F.S.

¹⁰ Sec. 817.535(1)(e)1., F.S.

¹¹ Sec. 817.535(1)(e)2., F.S.

¹² Sec. 817.535(1)(e)3., F.S.

¹³ Sec. 817.535(1)(e)4., F.S.

¹⁴ Sec. 817.535(1)(e)5., F.S.

¹⁵ Sec. 817.535(4)(a)1., F.S.

¹⁶ Sec. 817.535(4)(a)2., F.S.

¹⁷ Sec. 817.535(4)(b), F.S.

¹⁸ Sec. 817.535(5)(a), F.S.

¹⁹ Sec. 817.535(5)(b), F.S.

²⁰ Sec. 817.535(6), F.S.

²¹ Sec. 817.535(7), F.S.

²² Sec. 817.535(8)(a), F.S.

²³ Sec. 817.535(8)(b)1., F.S.

²⁴ Sec. 817.535(8)(b)2., F.S.

²⁵ Sec. 817.535(8)(b)3., F.S.

²⁶ Sec. 817.535(8)(c), F.S.

²⁷ Sec. 817.535(8)(d), F.S.

²⁸ Sec. 817.535(8)(e), F.S.

²⁹ Sec. 817.535(8)(f), F.S.

³⁰ Sec. 817.535(8)(g), F.S.

³¹ Sec. 817.535(9), F.S.

³² Sec. 817.535(10), F.S.

³³ Sec. 843.0855(2), F.S.

³⁴ Sec. 843.0855(3), F.S.

³⁵ Sec. 8430855(4), F.S.

³⁶ Sec. 921.0022, F.S.