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.

Vacatur of Sentences Obtained by Fraud or Misrepresentation

Under the common law, any court of record had absolute control over its orders, decrees, etc., and could amend, vacate, modify or change them at any time during the term at which rendered. Control now is in the courts during the period allowed by the rules of court, terms (as used in common law) having been abandoned. This restriction does, however, not apply to such orders, judgments or decrees which are the product of fraud, collusion, deceit, mistake, etc. Such may be vacated, modified, opened or otherwise acted upon at any time. This is an inherent power of courts of record, and one essential to insure the true administration of justice and the orderly function of the judicial process. As between the parties any judgment or order procured from any court by the practice of fraud or deception may, in appropriate proceedings, be recalled and set aside at any time, whether entered in a civil case or a criminal case.¹