       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       LEONARD ALVIN JONES,
                            Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-590

                             [March 7, 2018]


  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Cheryl    Caracuzzo,      Judge;   L.T.    Case    No.
502016CF007717AXXXMB.

  Carey Haughwout, Public Defender, and Travis Dunnington, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D.
Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   Appellant was convicted of multiple charges including trespass of a
structure, petit theft, and fraudulent use of a credit card in violation of
section 817.61, Florida Statutes (2016). On appeal he argues only that
the trial court erred in denying his motion for judgment of acquittal as to
the fraudulent use of a credit card. He contends that in using the stolen
credit card he never represented that he was authorized to use the card.
Because the state had charged him alternatively with using the card or
fraudulently representing he was the holder of the card, and the evidence
undisputedly showed that he used the stolen card, the court did not err in
submitting the case to the jury. We therefore affirm.

   The victim whose credit card was stolen was on a retreat at a monastery
when she received an alert that her debit card had been used to charge
something. The victim testified that she did not give anyone permission to
use her card. Knowing that she had not made any charges, she discovered
that her entire purse was missing. When informed of the theft, an
employee of the monastery described an individual on the premises
wearing a construction vest and acting suspiciously. The individual
attempted to hide when he saw the employee. The employee later
identified appellant’s picture in a photo lineup. After an officer arrived and
commenced an investigation, he went to a McDonald’s where the debit
card had been used twice, according to the credit card records. Pulling
surveillance videos from the store for the time during which the
transaction occurred, the officer developed a description and sent out a
flyer, with an image from the video, of an individual wearing a yellow vest.
Ten days later, the officer came into contact with the appellant, who was
wearing a yellow vest. Appellant admitted that he was the person in the
surveillance video.

   A McDonald’s manager testified that appellant had come into the
McDonald’s twice on the same day and made purchases with the victim’s
credit cards. The purchaser swiped his card, and the register system
generated a receipt. The time is recorded on the receipt. The receipts,
however, were not required to be, and were not, signed by the appellant.

    After presentation of the state’s case, the appellant moved for judgment
of acquittal, contending that the state had not proved he had represented
himself as the victim when he used the card. The trial court denied the
motion, and appellant was found guilty and convicted of the various
charges, including fraudulent use of the credit card. He appeals.

   Section 817.61, Florida Statutes (2016), makes it a crime to
fraudulently use a credit card. The crime may be committed in alternative
ways, as set forth in the statute:

      Fraudulent use of credit cards - A person who, with intent
      to defraud . . . a person or organization providing money,
      goods, services, or anything else of value . . . uses, for the
      purpose of obtaining money, goods, services, or anything else
      of value, a credit card obtained or retained in violation of
      this part . . . , or who obtains money, goods, services, or
      anything else of value by representing, without the
      consent of the cardholder, that he or she is the holder of
      a specified card . . . violates this section. A person who, in
      any 6-month period, uses a credit card in violation of this
      section two or fewer times, or obtains money, goods, services,
      or anything else in violation of this section the value of which
      is less than $100, is subject to the penalties set forth in s.
      817.67(1). A person who, in any 6-month period, uses a credit
      card in violation of this section more than two times, or

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      obtains money, goods, services, or anything else in violation
      of this section the value of which is $100 or more, is subject
      to the penalties set forth in s. 817.67(2) (emphasis added).

    As he argued in the trial court, appellant maintains the state failed to
prove that he had represented that he was the owner of the credit card he
used, and thus the state had failed to prove the essential elements of a
violation of section 817.61. He relies on A.M. v. State, 794 So. 2d 645 (Fla.
2d DCA 2001). A.M., however, is distinguishable. There, the State had
filed a petition for delinquency against A.M. alleging:

      with intent to defraud the issuer or a person or organization
      providing money, goods, services or anything else of value,
      use a credit card more than two (2) times in a six (6) month
      period or obtained money, goods, services or anything else of
      a value of greater than One Hundred Dollars ($100.00) by
      representing, without the consent of the cardholder, that
      he is the holder of the card so used, contrary to Section
      817.61, Florida Statutes . . . .

Id. (emphasis added). When A.M. used her mother’s credit card without
her permission, she signed for her purchases in her own name and simply
told the merchant that the card was her mother’s. Thus, because she
never represented that she was the owner of the card and told the
merchant that the card was her mother’s, the state failed to prove the
charge it made.

   In contrast, the information in this case charged the appellant in the
alternative:

      COUNT 3: LEONARD ALVIN JONES . . . did knowingly use a
      credit card that was obtained or retained unlawfully or
      knowing that the credit card was forged with the intent to
      defraud anyone who provided money, goods, services, or
      anything else of value or did obtain money, goods, property,
      services, or anything else of value by representing that he
      was the holder of a card without the authority of [the
      victim] . . . contrary to Florida Statutes 817.61 and 817.67(1).

(emphasis added). The state clearly proved that appellant used a credit
card unlawfully. Therefore, the state did prove the essential elements of
the crime, and the court correctly denied the motion for judgment of
acquittal on this charge.


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   Even as to the alternative alleged in the information of fraudulently
representing that appellant was the holder of the card without the
authority of the victim, the state proved its case. Appellant swiped the
card, and the victim testified that she did not give anyone permission to
use her card. Although the merchant did not ask and no one checked as
to whether he was the owner of the card or had permission to use it, we
think in this day and age of credit card transactions which do not require
signatures above a certain amount, the act of swiping constitutes a
representation that the swiper had authority to use the card. As the
Maryland appellate court observed in Clark v. State, 981 A.2d 710, 722
(Md. Ct. Spec. App. 2009), “[o]rdinarily, when a person tenders a stolen
credit card to a merchant as payment for goods or services, the person so
presenting implicitly represents that he or she is the cardholder.” We agree
with this statement.

   For the foregoing reasons, we affirm the convictions and sentences.

   Affirmed.

MAY and DAMOORGIAN, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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