       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                     v.

                        RACHELLE LAURISTON,
                              Appellee.

                              No. 4D19-1573

                             [April 22, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Marina Garcia Wood, Judge; L.T. Case No. 17-7642
CF10A.

  Ashley Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

   Carey Haughwout, Public Defender, and David John McPherrin,
Assistant Public Defender, West Palm Beach, for appellant.

GERBER, J.

   The state appeals from the circuit court’s order granting the defendant’s
motion to dismiss one count of public assistance fraud charged under
sections 414.39(1)(a) and (5)(b), Florida Statutes (2015). The state argues
the circuit court misinterpreted section 414.39(5)(b) as requiring the state
to allege and prove the defendant committed fraud in each of twelve
consecutive months. According to the state, the statute’s plain meaning
only requires the state to allege and prove the public assistance wrongfully
received, retained, misappropriated, sought or used was of an aggregate
value of $200 or more during a twelve consecutive month period, but not
necessarily committed in each of twelve consecutive months.

   We agree with the state’s argument. Thus, we reverse the circuit court’s
order and remand for reinstatement of the state’s public assistance fraud
charge against the defendant.
                           Procedural History

   Sections 414.39(1)(a) and (5)(b), Florida Statutes (2015), provide, in
pertinent part:

      (1) Any person who knowingly:

      (a) Fails,    by     false   statement,     misrepresentation,
      impersonation, or other fraudulent means, to disclose a
      material fact used in making a determination as to such
      person’s qualification to receive public assistance under any
      state or federally funded assistance program;

      ....

      commits a crime and shall be punished as provided in
      subsection (5).

      ....

      [(5)](b) If the value of the public assistance or identification
      wrongfully received, retained, misappropriated, sought, or used
      is of an aggregate value of $200 or more, but less than $20,000
      in any 12 consecutive months, such person commits a felony
      of the third degree . . .

§ 414.39(1)(a), (5)(b), Fla. Stat. (2015) (emphases added).

    Pursuant to the sections 414.39(1)(a) and (5)(b), the state’s information
in this case alleged, in pertinent part:

      [The defendant], on or about the 3rd day of April, A.D. 2015 up
      to and including the 28th day of February, A.D. 2016, in
      [Broward County, Florida], did then and there unlawfully and
      knowingly fail by false statement, misrepresentation,
      impersonation, or other fraudulent means, to-wit: failed to
      report gainful employment, to disclose a material fact used in
      making a determination as to her qualifications to receive
      public assistance under any state or federally funded
      assistance program, to-wit: Food Assistance Benefits and the
      value of public assistance, wrongfully received, retained,
      misappropriated, sought or used was of an aggregate value of
      two hundred dollars ($200.00) or more in a twelve (12)


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      consecutive month period, contrary to F.S. 414.39(1)(a) and
      F.S. 414.39(5)(b), [Florida Statutes (2015)] . . . .

(emphases added).

    The defendant filed a motion to dismiss the charge. The motion alleged
the information was fatally flawed because it did not allege a crime under
414.39(5)(b). Specifically, the defendant argued “[section] 414.39(5)(b)
requires a consecutive period of 12 months or longer which is not
alleged in the information.” (emphasis in original).

   The circuit court agreed with the defendant’s interpretation of section
414.39(5)(b) and entered an order granting the motion to dismiss. The
circuit court’s order stated, in pertinent part:

      The Information is fatally defective and therefore cannot
      stand. The Statute under which the Defendant was charged
      requires 12 consecutive months of fraud. The Information
      alleges 10 months and 26 days. . . . Therefore, the Information
      is defective and the charge cannot stand.

(emphasis added).

                                This Appeal

   This appeal followed. The state argues the circuit court misinterpreted
section 414.39(5)(b) as requiring the state to allege and prove twelve
consecutive months of fraud. According to the state, the statute’s plain
meaning only requires the state to allege and prove the public assistance,
wrongfully received, retained, misappropriated, sought or used was of an
aggregate value of $200 or more in a twelve consecutive month period.

   The defendant responds the circuit court properly interpreted section
414.39(5)(b).     In the alternative, the defendant argues if section
414.39(5)(b) is ambiguous due to the statute’s differing interpretations,
then the rule of lenity requires us to interpret the statute in the defendant’s
favor, consistent with the circuit court’s interpretation.

    Applying de novo review, we agree with the state’s argument. See State
v. Dorsett, 158 So. 3d 557, 560 (Fla. 2015) (“The interpretation of a statute
is a purely legal matter and therefore subject to the de novo standard of
review.”) (citation omitted).



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a. The statute’s plain language is unambiguous in context.

    “To answer a question of statutory construction, courts must first look
to the statute’s language, considering its words in the context of the entire
section rather than in isolation. If the statutory language is clear and
unambiguous, the court must recognize the statute’s plain meaning and,
therefore, need not employ any other rules of statutory construction.”
State v. Lewars, 259 So. 3d 793, 797 (Fla. 2018) (internal citations
omitted).

   Here, section 414.39(5)(b)’s use of the clause “in any 12 consecutive
months,” when read in the entire section’s context, plainly refers to the
defined time period during which the wrongfully received public assistance
must aggregate to “two hundred dollars ($200.00) or more, but less than
$20,000.”

   In other words, section 414.39(5)(b) provides the guideposts in both
dollars and time for which the state must prove a person has wrongfully
received, retained, misappropriated, sought, or used public assistance,
that is, “an aggregate value of $200 or more, but less than $20,000 in any
12 consecutive months.”

2. The rules of statutory construction dictate the same conclusion.

   Even if we were to agree with the defendant that section 414.39(5)(b) is
ambiguous (which it is not), the rules of statutory construction dictate the
same conclusion, thus precluding the defendant’s reliance on the rule of
lenity. See Paul v. State, 129 So. 3d 1058, 1064 (Fla. 2013) (“[The] rule of
lenity is a canon of last resort and only applies if the statute remains
ambiguous after consulting traditional canons of statutory construction.”).

   Under the nearest-reasonable-referent doctrine, “whether coming
before or after what is modified, modifiers (adjectives, adverbs,
prepositional phrases, restrictive clauses) should be read as modifying the
nearest noun, verb, or other sentence element to which they can
reasonably be said to pertain.” Scherer v. Volusia Cty. Dep’t of Corrections,
171 So. 3d 135, 138 (Fla. 1st DCA 2015).

   As stated above, section 414.39(5)(b) states, in pertinent part:

      If the value of the public assistance or identification
      wrongfully received, retained, misappropriated, sought, or
      used is of an aggregate value of $200 or more, but less than

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      $20,000 in any 12 consecutive months, such person commits
      a felony of the third degree …

Id. (emphasis added).

   Applying the nearest-reasonable-referent doctrine, the word “any”
modifies “consecutive 12 months.” Thus, the misappropriated value of
$200 or more but less than $20,000 must aggregate in “any” twelve
consecutive months.      The misappropriated value does not need to
aggregate in “each of” twelve consecutive months.

   Further, interpreting section 414.39(5)(b) as requiring the value of $200
or more but less than $20,000 to aggregate in “each of” twelve consecutive
months, as the defendant argues and as the circuit court found, would
lead to absurd consequences. See State v. Atkinson, 831 So. 2d 172, 174
(Fla. 2002) (“A basic tenet of statutory construction compels a court to
interpret a statute so as to avoid a construction that would result in
unreasonable, harsh, or absurd consequences.”). For example, under the
defendant’s argument, a person could misappropriate $200 or more but
less than $20,000 every month (or every week or day) for eleven months,
take a break from their scheme in the twelfth month, and then resume
their scheme when the twelfth month ended.             Or a person could
misappropriate $200 or more but less than $20,000 on any given day, as
long as the person did not do so in each of twelve consecutive months.
Given these absurd consequences, the defense’s argument lacks merit.

   Based on the foregoing, we reverse the circuit court’s order granting the
defendant’s motion to dismiss, and remand for reinstatement of the state’s
public assistance fraud charge against the defendant.

   Reversed and remanded for proceedings consistent with this opinion.

MAY and CIKLIN, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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