47 So. 3d 937
Fla. Dist. Ct. App.2010Background
- Appellant was tried for organized fraud under Florida Statutes §817.034(4)(a)1. for allegedly obtaining over $50,000 from victims over three years.
- Appellant owned Merit First; he and co-defendant Smith sold investments via promissory notes later deemed to be shell corporate schemes.
- Investors largely did not receive repayments; funds were found flowing to appellant and Smith, not to purported investments.
- At charge conference the state and defense agreed the elements required showing a scheme to defraud and obtaining property through that scheme.
- Defense argued the two defendants must be proven to have engaged in the scheme together; prosecutors questioned separate accountability for each defendant.
- After closing arguments the court amended the jury instruction from an 'and' conjunction to 'and/or', changing the required factual framing of the offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether post-argument jury instruction change was reversible error | O'Keefe argues change prejudiced closing argument understanding | State contends no reversible error given curative options | Per se reversible error; remand for new trial |
Key Cases Cited
- Kirkland-El v. State, 883 So.2d 383 (Fla. 4th DCA 2004) (changing post-argument instructions prejudices defense)
- Knuth v. State, 679 So.2d 22 (Fla. 2d DCA 1996) (post-argument instruction changes require remedy)
- King v. State, 642 So.2d 649 (Fla. 2d DCA 1994) (closing argument impact when instruction altered)
- I v. State, 351 So.2d 26 (Fla.1977) (jury questions outside presence prejudicial to defense)
- State v. Merricks, 831 So.2d 156 (Fla.2002) (jury management and instruction concerns)
- Williams v. State, 792 So.2d 1207 (Fla.2001) (juror-related procedural safeguards)
- DiGuilio v. State, 491 So.2d 1129 (Fla.1986) (harmless error vs. per se reversible error framework)