# Petition for Writ of Certiorari — Franta v. Florida

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2528%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 856

## Text

=,

= ae /
84 = 1 3 2 Office-Supreme Court, U.S
. | te -ibLE bp
sons [QOL 23 1984
IN THE ALEXANDER L. STEVAS
SUPREME COURT OF THE UNITED stares Clik
OCTOBER TERM 1984
JOHN CHARLES FRANTA
Petitioner,
versus
STATE OF FLORIDA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE FLORIDA SECOND DISTRICT
COURT OF APPEAL

DONALD I. BIERMAN, ESQ.
BENEDICT P. KUEHNE, ESQ.
Counsel of Record

BIERMAN, SONNETT, SHOHAT
& SALE, P.A.

Suite 500

200 S.E. First Street
Miami, Florida 33131
Telephone: (305) 358-7477

Counsel for Petitioner

QUESTION PRESENTED FOR REVIEW

WHETHER THE DECISION BELOW,
AFFIRMING WITHOUT OPINION
PETITIONER'S CONVICTIONS FOR THEFT
AND ENGAGING IN A SCHEME TO DEFRAUD,
IS CONTRARY TO LAW AND RESULTS IN A
DEPRIVATION OF HIS CONSTITUTIONAL
RIGHT TO DUE PROCESS, WHERE THE
EVIDENCE ESTABLISHED ONLY THAT
PETITIONER WAS INVOLVED IN THE
COMPETITIVE BUSINESS OF HOME REPAIR
SOLICITATION, THAT HE ENGAGED IN
LEGITIMATE SALES PUFFERY, BUT THAT
HE DID NOT ACT TO DEFRAUD ANY
HOMEOWNERS ?

LIST OF INTERESTED PERSONS

The only persons having an
interest in the outcome of this case are
the Petitioner, his family and the State

of Florida.

TABLE OF CONTENTS

Page

CP Ree. WES 6.6 6060808000506 366d 0468808

Bio FS og i ee 3
CONSTITUTIONAL AND STATUTORY

PROUT LOE EMVOMVEM oc ccccccecsceece 3

Drees Ge Bee GMb eeeescccccueseses 4

REASONS FOR GRANTING THE WRIT........ Pe

THE DECISION BELOW,
AFFIRMING WITHOUT OPINION
PETITIONER'S CONVICTIONS FOR
THEFT AND ENGAGING IN A
SCHEME TO DEFRAUD, IS
CONTRARY TO LAW AND RESULTS
IN A DEPRIVATION OF HIS
CONSTITUTIONAL RIGHT TO DUE
PROCESS, WHERE THE EVIDENCE
ESTABLISHED ONLY THAT
PETITIONER WAS INVOLVED IN
THE COMPETITIVE BUSINESS OF
HOME REPAIR SOLICITATION,
THAT HE ENGAGED IN
LEGITIMATE SALES PUFFERY,
BUT THAT HE DID NOT ACT TO
DEFRAUD ANY HOMEOWNERS.

Cs cb bbb eb ees hehe sn bende boe bees

Ps 666660066 0064S 6 60 B6 SOs O04 Oe Oe

-iii-

TABLE OF AUTHORITIES

Page

Franta v. State,
450 So.2d 495 (Fla. 2d DCA 1984)..1, 2

In re Winship,
397 U.S. 358, 90 S.Ct. 1068 (1970)..12

Jackson v. Virginia,
643 0.8. 307, 99 B.C. 2761 (i979) ..iZ

United States v. Beitscher,
467 P.26 269 CISER Cifs T9722) oc ceces 19

United States v. Kreimer,
609 F.24 126 (Sth Cir. 1960) .cccsecs 19

United States v. Martin-Trigona,
684 P.26 S65 (7th Cie. 1982) -ccccces 19

United States v. Pearlstein,
S76 F.26 S31L (36 Cie. T978) vccccness 19

United States v. Shamy,
656 F.2d 951 (4th Cir. 1981)........ 18

Constitutional Provisions and Statutes

United States Constitution
Fifth Amendment......ceecceces tienecuae
Fourteenth Amendment.......ceceeee eer >

28 U.S.C. §1257(3) .. cc cccccccccccceveeed

NO.

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

JOHN CHARLES FRANTA,
Petitioner,
versus
STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE FLORIDA SECOND DISTRICT
COURT OF APPEAL

Petitioner, JOHN CHARLES
FRANTA, respectfully prays that a Writ
of Certiorari issue to review the judg-
ment, opinion, and order on rehearing of
the Florida Second District Cou t of
Appeal entered in Case No. 83-678, which
affirmed the criminal convictions and
sentences of the Circuit Court of the

Sixth Judicial Circuit of Florida.

oj-

Franta v. State, 450 So.2d 495 (Fla. 24d

DCA 1984).

OPINIONS BELOW

The opinion of the Florida
Second District Court of Appeal, entered

April 11, 1984, is reported as Franta vy.

State, 450 So.2d 495 (Fla. 2d DCA 1984).
This decision is reproduced in the
Appendix to this petition. That same
court denied rehearing on May 18,
1984. That order is contained in the
Appendix. The trial court did not ren-
der any written opinions specifically

directed to the question presented in

this certiorari petition.

JURISDICTION

Petitioner invokes the juris-
diction of this Court pursuant to 28
U.S.C. §1257(3).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

U.S. Constitution, Amendment V:

No person shall. . . be deprived of
life, liberty, or property without
due process of law. ..

u.S. Constitution, Amendment XIV:

All persons born or naturalized in
the United States, and subject to
the jurisdiction thereof, are citi-
zens of the United States and of the
State wherein they reside. No State
shall mak2 or enforce any law which
shall abridge the privileges or
immunities of citizens of the United
States; nor shall any State deprive
any person of life, liberty, or
property, without due process of
law; nor deny to any person within
its jurisdiction the equal protec-
tion of the law.

STATEMENT OF THE CASE

The State Attorney for the
Sixth Judicial Circuit, in and _ for
Pinellas County, Florida, returned a
fifteen-count information charging JOHN
CHARLES FRANTA and three others with
engaging in a scheme to defraud ten or
more persons, and grand theft. A jury
trial commenced on February 28, 1983.
During the course of the trial, the
court dismissed the charges alleged in
counts ll, 14 and 15 due to inadequate
evidence. The jury returned guilty
verdicts as to the remaining twelve
charges. The trial court punished
FRANTA by imposing a three-year term of
incarceration on count 1 followed by
concurrent terms of five years' proba-
tion on the remaining counts. The court
further ordered FRANTA to pay a total
fine of $5500. Petitioner sought appel-

late review in the Florida Second Dis-

aia

trict Court of Appeal, wherein he raised
four issues, to wit: insufficiency of
the evidence, unconstitutionality of the
charging statute, improper admission of
collateral act evidence, and erroneous
jury instructions. The District Court
affirmed the convictions.

As presented at trial, this
case involved allegations of consumer
fraud. The evidence was intended to
show that JOHN CHARLES FRANTA and
several other persons engaged in a plan
or scheme constituting a systematic
ongoing course of conduct to defraud
homeowners by inducing them to enter
into contractual arrangements for un-
necessary roof repairs. Petitioner's
allegedly criminal conduct grew out of
the operation of the Dennis E. Rodriguez
Construction Company, a business organ-
ized and licensed for the purpose of

providing roof repair services to home-

-§=

owners in Pinellas County, Florida.
Prospective customers were solicited by
either telephone or home canvassers.
The initial contact was intended to
arrange a pressure cleaning of the home-
owners’ roofs. In many instances, this
solicitation led to contracts for roof
repairs. The basic factual contention
at trial centered on the necessity for
the repairs and the manner in which the
repairs were effected.

The home repair business was
actually owned by Dennis E. Rodriguez,
who held a class C_- construction
license. Petitioner, known to Rodriguez
as a "super" salesman from prior con-
struction business, became associated
with Rodriguez in late 1981, and was
supposed to assist in increasing the
company business. Petitioner was to be
responsible for sales, while Rodriguez

was in charge of overseeing the home

o¢=

improvement construction activities,
which primarily involved roofing re-
pairs.

In order to secure business,
the company utilized canvassers' and
solicitations for roof cleanings. The
canvassers and roof cleaners, who where
paid either a flat fee per job or a
percentage of any future roof repair job
sold, looked for dirty roofs and homes
in need of roof repairs. If the home-
owner agreed to a pressure cleaning of
the roof and home exterior, a contract
was entered into for a fee. In the case
of a roof that appeared in need of re-
pairs, such as loose and mildewed tiles
or leaks, the canvassers and _ roof
cleaners contacted a company salesman
who then attempted to solicit the home-
owner for a second job to repair the
roof. In the event that nothing was

wrong with the roof or the homeowner did

oJa

not desire any repair work, the company
would verform the cleaning only or re-
fund the money as requested.

The majority of the initial
solicitations led to contracts for roof
repairs. Most customers were elderly
people. In order to secure a roof re-
pair sale, it was common for the sales-
men to dramatize and stress the impor-
tance of an existing problem with the
roof. No salesperson, however, was ever
advised by FRANTA or anyone else to lie
to a homeowner about the necessity for
repairs or to break or destroy a roof in
order to secure a job. In discussing
the need for repair work, salesmen
offered homeowners several options,
including advising the homeowner’ to
contact his or her own roofer about
effecting the repairs.

When a customer agreed to hire

the Dennis E. Rodriguez Construction

Company to do the repair work, a con-
tract was Grawn up and the specific work
to be done was included in the
contract. All contracts included the
required notice that cancellation could
be made within three days and contained
the company's telephone number, which
the salesperson underlined. Once the
job was sold, Rodriguez contacted avail-
able subcontractors in an effort to
begin work on the house as soon as pos-
sible. In the construction trade, this
effort to promptly begin working on the
repairs so as to show the customer that
the company could perform the job, was
for the purpose of dissuading the home-
owner from cancelling the contract.
This was known as “spiking the job”.
FRANTA's responsibility ended
when the job was sold. Supervision of
the job was Rodriguez’ concern. FRANTA

was, however, always very insistent that

~9-

the workmen per formed the repairs
“according to the contract" and contin-
ually reminded Rodriguez to properly
supervise the job. Whenever any cus-
tomer had a complaint abovt repair work,
Rodriguez sought to remedy the situa-
tion. To this extent, he responded to
complaints by sending workmen to redo
the work and make adjustments or by
agreeing on a price reduction. Rela-
tively few of the many jobs done experi-
enced problems. Throughout the course
of his business relationship with
FRANTA, Rodriguez attempted to do proper
roof repairs and never schemed to de-
fraud or mislead customers. Rodriguez
paid premium prices to his subcontrac-
tors in order to get premium work.

The actual work done on the
roofs was admittedly of inferior
quality. While extensive work was per-

formed on every home, expert witnesses

-10-

disagreed as to whether all contract
terms were satisfied. In some cases,
homeowners complained to the company and
received refunds. In other cases, home-
owners were satisfied with the roofing
work. In still other cases, homeowners
complained to the Consumer Affairs
Office. The prosecution theorized that
FRANTA and other company employees mis-
led and lied to the homeowners in
attempting to convince the homeowners to
agree to roof repairs. On every occa-
sion that a contract was executed, how-
ever, the roofs were in need of some
repair.

FRANTA earned a _e substantial
amount of money as a result of being
responsible for sales. During a ten
month period, he received $137,000 in-
come. FRANTA was, however, responsible
for resurrecting the financial health of

the company, which was in disastrous

-ll-

straits before his arrival. FRANTA was
not, however, in control of the company

or its finances.

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW, AFFIRMING WITH-
OUT OPINION PETITIONER'S CONVICTIONS
FOR THEFT AND ENGAGING IN A SCHEME
TO DEFRAUD, IS CONTRARY TO LAW AND
RESULTS IN A DEPRIVATION OF HIS
CONSTITUTIONAL RIGHT TO DUE ?ROCESS,
WHERE THE EVIDENCE ESTABLISHED ONLY
THAT PETITIONER WAS INVOLVED IN THE
COMPETITIVE BUSINESS OF HOME REPAIR
SOLICITATION, THAT HE ENGAGED IN
LEGITIMATE SALES PUFFERY, BUT THAT
HE DID NOT ACT TO DEFRAUD ANY HOME-
OWNERS.

In all criminal cases, the
prosecution has the responsibility of
proving every element of the crime
charged beyond a reasonable doubt. In

re Winship, 397 U.S. 358, 90 S.Ct. 1068

(1970). This burden is not dependent
upon the status of the prosecuting

authority, Jackson yv. Virginia, 443 U.S.

307, 99 S.Ct. 2781 (1979) (due process

requires same standard of proof in state

-12-

criminal proceedings), or the status of

the defendant. In _re Winship, supra

(beyond a reasonable doubt burden is
applicable in adult and juvenile prose-
cutions).

Yet, in the present case the
State of Florida, through the decision
of the Second District Court of Appeal,
has effectively imposed an altogether
new standard of criminal responsibilitv
in situations where an individual is
involved in the legitimate, but competi-
tive, business of home improvement soli-
citations. That court has effectively
held, by reason of its affirmance of the
convictions, that if a salesperson's
company does poor quality work, the
salesperson could ultimately be found
guilty of fraud and theft. This emerg-
ing standard of strict liability in the
context of business crimes is completely

erroneous and contrary to well estab-

o13<

lished notions of criminal
culpability. The conclusion of the
appellate court ought to be reviewed by
this Court for the very simple reason
that if unchecked, this standard will
impose liability upon every individual
who, by reason of attempting to make an
honest living in difficult economic
times, supplies services or preducts
which are not among the best the market-
place has to offer. Petitioner should
not be made to suffer as a criminal
because of the competitive nature of
small businesses today.

The situation now presented to
this Court is controlled by a substan-
tial body of precedent which, unfortu-
nately, was not applied to this case.
The record of proceedings in this case
demonstrates that numerous individuals,
operating through a licensed construc~-

tion company, endeavored to sell roof

ole

repair services by way of home solicita-
tions. The license holder, Dennis E.
Rodriquez, was not very knowledgeable in
roof repair aspects of the construction
business, although he did evidence the
required knowledge and experience needed
to obtain his state contractor's
license. Rodriguez, who was particular-
ly inept in the business end of the
construction trade, looked to the Peti-
tioner to supply a steady source of
business. Petitioner's expertise was in
sales. He was known for his ability to
persuade others to purchase the product
he offered -- roof repairs -- at a fair
and reasonable price. He made no pre-
tense of participating in the nuts and
bolts of the roof repair business.

The procedure utilized by the
construction company was neither devious
ner intended to take unfair advantage of

homeowners. Homeowners contracted for

-]5<

repairs to be made to their roofs.
Petitioner did not "take the money and
run"; rather, he and the other salesman
described precisely what was to be done
to the roof in a self-explanatory con-
tract. Subcontractors, hired by Dennis
Rodriguez, then went to work in accor-
dance with the contract terms. Some of
the work was substandard; other perfor-
mance was satisfactory. However, every
homeowner received at least partial
compliance with the terms of their re-
spective contract. At no time did the
Petitioner or anyone else involved in
the home repair activities intentionally
perform acts or fail to do something for
the purpose of unlawfully obtaining
property.

In finding the evidence in
this case sufficient to support the
convictions, the Florida Second District

failed to correctly comprehend the rele-

@16<

vant facts and consider the correct
evidentiary standard. To put this case
in its proper perspective, the activi-
ties involved herein are no different
from the actions of a typical used car
dealer. While such individuals are
generally understood to utilize high
pressure sales techniques, to engage in
sales puffery and embellishments, and to
emphasize the urgency of closing the
sale as quickiy as possible, it cannot
be said that such individuals break the
law by committing theft with each
sale. Yet, that situation is directly
analogous to this case. The Petitioner
himself was never once shown to have
lied to a homeowner. He did not promise
anything that was not done. While he

did embellish the quality of the repairs

which would be made and the urgency for
making the repairs, at no time did he

mislead the customers with respect to

=jJ=

any material fact.

That court's perception of the
case might be justified if the Peti-
tioner did not detail the obligations of
the construction company in the written
contracts. The same might be true if he
acted in a stealthy manner so as to
trick individuals into taking some
action which they did not understand.
Yet, not a single customer testified at
trial that the subcontractors did not do
what they were obligated to do. The
most that was said by the alleged vic-
tims and the other witnesses was that
the subcontractors did not perform their
responsibilities correctly. This proof
did not establish that the Petitioner
acted in a manner that conflicted with
accepted standards of moral uprightness,
fundamental honesty, fair play and right

dealing. United States v. Shamy, 656
F.2d 951 (4th Cir. 1981). A scheme to

-18-

defraud is limited to that which is
reasonably calculated to deceive persons
of ordinary prudence and

comprehension. United States Vv.

Beitscher, 467 F.2d 269 (10th Cir.

1972). Within the context of the alleg-
edly deceptive scheme involved herein,
the appellate court totally failed to
recognize the legal test that the evi-
dence must prove the defendant's speci-

fic intent to defraud. E.g., United

States v. Martin-Trigona, 684 F.2d 485

‘Fee Cifs 1982); United States _ vy.

Kreimer, 609 F.2d 126 (5th Cir. 1980).
The court's examination of the

evidentiary sufficiency in this case

should have been guided by the judicial

precedent of United States Vv.

Pearlstein, 576 F.2d 531 (3d Cir. 1978),
a case which was totally ignored by the
appellate court. There, various sales-

men were charged with participating in a

o19<

scheme to defraud involving the sale of
distributorships for a direct-mail-
marketing pen company. In the course of
securing distributorships, by which the
salesmen earned commissions, the sales
personnel utilized a sales pitch which
was replete with false and misleading
statements. The salesmen, however,
acted without knowledge of the false
nature of the claims made, and instead
merely functioned in the good faith
belief that they were honestly relating
facts in an effort to secure sales. The
mail fraud convictions were, appropri-
ately, reversed.

Petitioner's plight is simi-
lar. He never instructed salesmen to
lie or mislead prospective customers or
misrepresent any facts in order to in-
duce the sale. He was always concerned
about customer satisfaction, and insis-
ted upon prompt resolution of consumer

complaints.

@20-

Petitioner submits that this
Court must review the standard of evi-
dentiary sufficiency utilized by the
Florida Second District Court of
Appeal. That standard casts too broad a
net and causes disharmony with respect
to constitutional principles. Peti-
tioner was denied his constitutional]
right to due process, as guaranteed by
the Fifth and Fourteenth Amendments to
the United States Constitution. The
danger present in this case is that
businessmen, not bound by a rigid code
of ethics and work standards, will be
criminally punished because of the ap-
plication of strict liability with re-
spect to their endeavors. This case
presents a critical opportunity for this
Court to clarify this very important,
but hazy, area of criminal law. This
Court must issue its writ of certiorari

to correct the injustice found herein.

=21-

CONCLUSION

For the above reasons, a writ
of certiorari should issue to review the
judgment and opinion of the Flcrida
Second District Court of Appeal.

Respectfully submitted,

BIERMAN, SONNETT, SHOHAT
& SALE, P.A.

200 S.E. First Street
Suite 500

Miami, Florida 33131
(305) 358-7477

v4 tite Alb

T ot) 2 4 —S iE
BENEDICT P. KUEN:

DONALD I. BIERMAN, ESQ.
BENEDICT P. KUEHNE, ESQ.

-22-

APPEWDIX

-23-

NOT FINAL UNTIL TIME EXPIRES TO FILE
REHEARING MOTION AND, IF FILED,
DETERMINED.

IN THE DISTRICT COURT OF
APPEAL OF FLORIDA
SECOND DISTRICT

CASE NO. 83-678

JOHN CHARLES FRANTA,

Appellant,
v.

STATE OF FLORIDA,

Appellee.

Opinion filed April 11, 1984.

Appeal from the Circuit
Court for Pinellas County;
William L. Walker, Judge.

Donald L. Bierman and
Benedict P. Kuehne of
Bierman, Sonnett, Beiley,
Shohat & Sale, P.A.,
Miami, for Appellant.

Jim Smith, Attorney General,
Tallahassee, and Davis G.
Anderson, Jr., Assistant
Attorney General, Tampa,

for Appellee.

PER CURIAM.
Affirmed.

HOBSON, Fe and CAMPBELL and
SCHOONOVER, JJ., Concur.

: App. 1

IN THE SECOND DISTRICT COURT OF APPEAL,
LAKELAND, FLORIDA
May 18, 1984
Case No. 83-678

JOHN CHARLES FRANTA,
Appellant,

Vv.

STATE OF FLORIDA, :
Appellee. :

Counsel for appellant having
filed a motion for rehearing in the
above-styled case, upon consideration,
ce is

ORDERED that said motion is

hereby denied.

A TRUE COPY
TEST:

CLERK DISTRICT COURT OF APPEAL
SECOND DISTRICT

cc: Benedict P. Kuehne
Attorney General

App. 2

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2528%3A1. Public record. Not legal advice.