9 Fla. L. Weekly Supp. 760a
Criminal law — Insurance — Fraud — Venue — Where defendant is charged with submitting false or fraudulent automobile bill of sale in support of insurance claim, venue would be proper in county where bill of sale was prepared and mailed or county where it was received — Motion to dismiss granted where bill of sale was received by insurer outside of county, and state is unable to provide any evidence that defendant, who resides in another county, prepared or mailed the bill of sale from the county
STATE OF FLORIDA, Plaintiff, vs. STEPHEN ZARET, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 96-15136CF10A. September 12, 2002. Ana I. Gardiner, Judge. Counsel: Penn Farrington, Assist. State Attorney, for Plaintiff. Russell J. Williams, Fort Lauderdale, for Defendant.
ORDER ON MOTION TO DISMISS
THIS CAUSE comes before the Court upon Defendant’s Motion to Dismiss for Lack of Jurisdiction and Venue. The Court, having considered Defendant’s argument and evidence, the State’s response thereto, relevant case and statutory authority, and otherwise being fully advised in the premises, hereby finds and decides as follows:
The Defendant has been charged in a one-count Information with insurance fraud under Section 817.234(1)(a), Florida Statutes; specifically, he has been charged with submitting “a false or fraudulent bill of sale on a 1995 Porsche Cabroilet from Champion Audi, as part of, or in support of, a claim or other benefit pursuant to an automobile insurance policy issued by Government Employees Insurance Company, (GEICO).” He moves for dismissal on the basis that there are no facts which would support the State’s allegation of venue. The State maintains that pursuant to Fla. Stat. 910.05, venue is proper in Broward County. For the reasons which follow, the Court finds the State’s argument fails.
Under the State Constitution and Fla. Stat. 910.03, the Defendant has the right to be tried in the county where the crime took place. State v. Stephens, 608 So.2d 905 (Fla. 5th DCA 1992); Art. I, Sec. 16, Fla. Const. Venue is an essential element of the criminal charge; and even though it need not be proved beyond a reasonable doubt, there must be sufficient evidence presented from which the jury can reasonably infer that the offense was committed in the county where the case is brought. Brown v. State, 728 So.2d 335 (Fla. 4th DCA 1999). The State is correct in asserting that under Fla. Stat. 910.05, venue is proper in any county in which any of the acts constituting the offense occurred. Thus, venue would be proper in either the county where the bill of sale was prepared and mailed or in the county where the bill of sale was received. State v. Wise, 664 So.2d 1028 (Fla. 2d DCA 1995) (when the deposit in the mail is made in one county and the communication received in another, venue is proper in either county); Hitchcock v. State, 746 So.2d 1143 (Fla. 5th DCA 1999). In this case, the State can provide no evidence to support the filing of this criminal information within Broward County. The subject bill of sale was received by GEICO outside the jurisdictional limits of this Court; the facts indicate that the Defendant is a resident of Captiva Island (Collier County); and the State is unable to provide any evidence that the bill of sale was prepared or mailed from Broward County. Proof of venue “cannot be left to guesswork on the part of the jury.” Pennick v. State, 453 So.2d 542, 544 (Fla. 3d DCA 1984), citing to Powell v. State, 132 Fla. 659, 181 So. 901 (1938).
Based upon the foregoing, it is
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss For Lack of Jurisdiction and Venue is GRANTED.
* * *
