         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


RUBEN BOLIVAR CASAIS,

             Appellant,

 v.                                                     Case No. 5D16-1072

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed November 18, 2016

Appeal from the Circuit Court
for Osceola County,
A. James Craner, Judge.

James S. Purdy, Public Defender, and
George D. E. Burden, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kristen L. Davenport,
Assistant Attorney General, Daytona
Beach, for Appellee.


EDWARDS, J.

      Ruben Casais appeals from his conviction for uttering a forged credit card in

violation of section 817.60, Florida Statutes (2015). Appellant used altered gift cards to

purchase cigarettes and other items at a Publix grocery store. When the police confronted

Appellant they discovered he had several altered gift cards in his possession. Because
the statute under which he was convicted specifically defines “credit cards” in a way that

does not include the “gift cards” used or possessed by Appellant, his conviction must be

overturned.

       Appellant argues that the trial court erred in denying his motion for judgment of

acquittal because, although the State presented evidence that Appellant used altered gift

cards, the State did not prove that Appellant used an altered credit card. Appellant

contends that the gift cards he used were not credit cards under the statutory definition

of credit card. The relevant statute defines credit card as:

              “Credit card” means any instrument or device, whether known
              as a credit card, credit plate, bank service card, banking card,
              check guarantee card, electronic benefits transfer (EBT) card,
              or debit card or by any other name, issued with or without fee
              by an issuer for the use of the cardholder in obtaining money,
              goods, services, or anything else of value on credit or for use
              in an automated banking device to obtain any of the services
              offered through the device.


§ 817.58(4), Fla. Stat. (2015) (emphasis added). The section defines “cardholder” as “the

person or organization named on the face of a credit card to whom or for whose benefit

the credit card is issued by an issuer.” § 817.58(2), Fla. Stat. (2015). Appellant argues

that because the face of the gift cards he used and possessed did not have the name of

a person or organization to whom they were issued, as a matter of law, there was no

“cardholder,” meaning the gift cards were not “credit cards.”

       The State argues that Appellant waived this argument when trial counsel agreed

with the trial court’s statement that if somebody possessed the gift card, he or she would

be the holder of that card, or put another way, the “cardholder.” Indeed, thereafter,

Appellant’s counsel continued to argue that the gift card was not a credit card, but no




                                             2
not support conviction of first-degree felony crime of robbery because no firearm was

utilized).

        As Appellant’s trial counsel argued to the jury, the question was not whether

Appellant did something wrong or committed some other crime by using the altered gift

cards. The only question for the jury, and now for this court, is whether Appellant was

guilty of uttering a forged credit card in violation of section 817.60. Given the undisputed

evidence and the clear statutory definition of credit card, we find that as a matter of law,

Appellant did not commit the only crime with which he was charged. Accordingly, we

reverse and remand for the trial court to enter a judgment of acquittal.


        REVERSED AND REMANDED.


SAWAYA and BERGER, JJ., concur.




                                             6
plain language for legislative intent or resort to rules of statutory construction to ascertain

intent.” (citing Lee Cty. Elec. Coop., Inc. v. Jacobs, 820 So. 2d 297, 303 (Fla. 2002))).

Likewise, “[a] court cannot construe an unambiguous statute in a way which would

extend, modify, or limit its express terms or its reasonable and obvious implications.”

Jefferson, 927 So. 2d at 1039 (Reyes, J., concurring).

       In the present case, the statute defining credit card has a clear, plain meaning.

The statute clearly defines a credit card as “any instrument . . . issued . . . for the use of

the cardholder.” § 817.58(4), Fla. Stat. (2015). The statute also clearly defines cardholder

as “the person or organization named on the face of a credit card to whom or for whose

benefit the credit card is issued by an issuer.” § 817.58(2), Fla. Stat. (2015) (emphasis

added). The same statute includes as part of its definition that a “credit card” can be used

to obtain goods on credit, and can include a debit or bank card that could be used in an

automated banking device, such as an ATM. Because the statute is clear on its face, the

court must use the statute’s plain meaning when analyzing whether the subject gift cards

are credit cards under this statute.1

       The gift cards Appellant used or possessed resembled credit cards in certain ways:

the gift cards bore logos, such as VISA, Master Card, or American Express, had

embossed numbers on the front, and magnetic strips on the back. However, the State

did not prove that the gift cards had a cardholder “named on the face” of the card. The




       1 While we need not look to other statutes to decide this case, it is noteworthy that
the Legislature is aware of the existence and nature of gift cards as it chose to include
“gift card” as one of several statutory synonyms for the term “gift certificate” in section
501.95, Florida Statutes (2015). The terms “gift card” is used in five other statutes, but
never as a synonym for “credit card.” See §§ 546.10, 626.9541, 634.401, 634.414,
641.3903, Fla. Stat. (2015).


                                              4
faces of these gift cards contained words such as “A Gift For You,” where the name of a

cardholder would be on a credit card. The evidence on this point was undisputed as

Appellant stated three times in his testimony that there were no names on any of the

cards without contradiction from witnesses or the actual gift cards. Nor was there any

evidence presented that the gift cards could be used to obtain goods on credit or that they

could be used in an ATM.

       Under the plain meaning of the statute defining credit card, the State did not prove

that the gift cards were credit cards. Therefore, Appellant could not be found guilty of

uttering a forged credit card, and the trial court should have granted Appellant’s motions

for judgment of acquittal. See Hamilton v. State, 71 So. 3d 247, 247-48 (Fla. 4th DCA

2011) (determining that fundamental error occurred because the trial court convicted the

defendant for robbery with a weapon when “the state presented evidence that the gun

used in the robbery was not a firearm, but a toy gun”); Stanley v. State, 757 So. 2d 1275,

1275 (Fla. 4th DCA 2000) (reversing the trial court’s denial of defendant’s motion for

judgment of acquittal in a robbery with a weapon charge because the state failed to prove

the “weapon” defendant used fell under the statutory definition of weapon); Charley v.

State, 590 So. 2d 5, 6 (Fla. 1st DCA 1991) (finding that the trial court erred in denying a

motion for judgment of acquittal for a charge of carrying a concealed firearm because “the

state failed to provide competent, substantial evidence that the starter pistol found in

appellant’s pocket was a ‘firearm’ as defined in [the Florida Statutes]”); Ridley v. State,

441 So. 2d 188, 188 (Fla. 5th DCA 1983) (holding that use of a starter pistol that was

incapable of firing a projectile and that was not readily convertible for such purpose would




                                             5
not support conviction of first-degree felony crime of robbery because no firearm was

utilized).

        As Appellant’s trial counsel argued to the jury, the question was not whether

Appellant did something wrong or committed some other crime by using the altered gift

cards. The only question for the jury, and now for this court, is whether Appellant was

guilty of uttering a forged credit card in violation of section 817.60. Given the undisputed

evidence and the clear statutory definition of credit card, we find that as a matter of law,

Appellant did not commit the only crime with which he was charged. Accordingly, we

reverse and remand for the trial court to enter a judgment of acquittal.


        REVERSED AND REMANDED.


SAWAYA and BERGER, JJ., concur.




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