Capiro v. State
2012 Fla. App. LEXIS 15319
| Fla. Dist. Ct. App. | 2012Background
- Capiro was convicted of grand theft over $100,000 and appeals the conviction and sentence.
- In 2006, Capiro started a commercial mortgage lending company; two friends lent him $250,000 and became part owners.
- The loan was memorialized in a Business Agreement and a Promissory Note; the documents were signed by Capiro (and his wife) in their individual capacities.
- The Promissory Note described monthly interest-only payments with principal due in three years and did not restrict use of funds, though an addendum suggested the loan was to the business for licensing purposes.
- A victim testified the loan was made to satisfy licensing requirements and that Capiro understood he could not spend the principal personally.
- Capiro used the loan proceeds for personal expenses, defaulted on interest payments, and the victims sued, leading to criminal charges for grand theft over $100,000.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel's failure to request a good faith defense jury instruction was ineffective assistance | Capiro | State | Yes; deficient performance and prejudice established |
Key Cases Cited
- Aversano v. State, 966 So.2d 493 (Fla. 4th DCA 2007) (IAC on direct appeal when record shows essential defense)
- McMullen v. State, 876 So.2d 589 (Fla. 5th DCA 2004) (IAC review on direct appeal when prejudice evident)
- Alfaro v. State, 837 So.2d 429 (Fla. 4th DCA 2002) (good faith belief in right to possession as defense to theft)
- Rodriguez v. State, 396 So.2d 798 (Fla. 3d DCA 1981) (good faith defense of possession available)
- Verdult v. State, 645 So.2d 530 (Fla. 4th DCA 1994) (need for defense instruction when evidence supports defense)