HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 1171 Schemes to Defraud
SPONSOR(S): Judiciary Committee, Criminal Justice Subcommittee, Steele
TIED BILLS: IDEN./SIM. BILLS: SB 1220
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Judiciary Committee 19 Y, 0 N, As CS Leshko Kramer
SUMMARY ANALYSIS
Section 817.034, F.S, prohibits a person from committing organized fraud by engaging in a scheme to defraud and
obtaining property thereby. A “scheme to defraud” is a systematic, ongoing course of conduct with intent to defraud
one or more persons, or with intent to obtain property from one or more persons by false or fraudulent p retenses,
representations, or promises or willful misrepresentations of a future act. Under s. 817.034, F.S., if the amount of
property obtained has an aggregate value of:
$50,000 or more, the offender commits a first-degree felony.
$20,000 or more, but less than $50,000, the offender commits a second-degree felony.
Less than $20,000, the offender commits a third-degree felony.
Section 817.034, F.S., also prohibits a person from committing communications fraud by engaging in a scheme to
defraud and, in furtherance of that scheme, communicating with any person with intent to obtain property from that
person. If the value of the property obtained or endeavored to be obtained by the communication is valued at:
$300 or more, the offender commits a third-degree felony.
Less than $300, the offender commits a first-degree misdemeanor.
Section 540.08, F.S., prohibits the unauthorized publication of the name or likeness of a person. If proper consent is
not obtained prior to publication, specified persons may bring a civil cause of action to enjoin the unauthorized use
and recover damages, including an amount that would have been a reasonable royalty.
CS/CS/HB 1171 amends s. 817.034, F.S., to prohibit a person from committing organized fraud by engaging in a
scheme to defraud by utilizing false or fraudulent endorsements of nonconsenting parties; and from committing
communications fraud by engaging in a scheme to defraud by utilizing false or fraudulent endorsements of
nonconsenting parties and, in furtherance of that scheme, communicating with any person with the intent to obtain
property from that person.
The bill reclassifies organized fraud and communications fraud offenses that are committed against a person 65
years of age or older, a minor, or a person with a mental or physical disability. Under the bill, such offenses will be
reclassified as follows:
A misdemeanor of the first-degree is reclassified to a felony of the third-degree.
A felony of the third-degree is reclassified to a felony of the second-degree.
A felony of the second-degree is reclassified to a felony of the first-degree.
A felony of the first-degree is reclassified to a life felony.
The bill also provides for a civil cause of action for any person whose image or likeness was used without consent in
a scheme to defraud and authorizes the person to recover an amount for damages caused by the use of his or her
image or likeness.
The bill may have a positive indeterminate impact on jail and prison beds. See Fiscal Comments.
The bill provides an effective date of October 1, 2024.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h1171d.JDC
DATE: 2/21/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Florida Communications Fraud Act
Organized Fraud
Section 817.034, F.S, prohibits a person from committing organized fraud by engaging in a scheme to
defraud and obtaining1 property thereby.2
A “scheme to defraud” is a systematic, ongoing course of conduct with intent to defraud one or more
persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses,
representations, or promises or willful misrepresentations of a future act. 3
Under s. 817.034, F.S., if the amount of property obtained has an aggregate value of:
$50,000 or more, the offender commits a first-degree felony.4, 5
$20,000 or more, but less than $50,000, the offender commits a second-degree felony.6, 7
Less than $20,000, the offender commits a third-degree felony.8, 9, 10
Communications Fraud
Section 817.034, F.S., also prohibits a person from committing communications fraud by engaging in a
scheme to defraud and, in furtherance of that scheme, communicating 11 with any person with intent to
obtain property from that person.12
If the value of the property obtained or endeavored to be obtained by the communication is valued at:
$300 or more, the offender commits a third-degree felony.13
Less than $300, the offender commits a first-degree misdemeanor.14
Notwithstanding any other provisions of law:
Separate judgments and sentences for organized fraud and for each offense of communications
fraud may be imposed when all such offenses involve the same scheme to defraud. 15
A criminal action or civil action or proceeding under s. 817.034, F.S., may be commenced at
any time within five years after the cause of action accrues; however, in a criminal proceeding
under this section, the period of limitation does not run during any time when the defendant is
1 Section 817.034(3)(b), F.S., defines “obtain” to mean temporarily or permanently depriving any person of the right to propert y or a
benefit therefrom, or to appropriate the property to one’s own use or to the use of any other person not entitled thereto.
2
S. 817.034(4)(a), F.S.
3 S. 817.034(3)(d), F.S.
4 A first-degree felony is punishable by up to 30 years’ imprisonment and a $10,000 fine. Ss. 775.082, 775.083, or 775.084, F.S.
5 Ranked as a Level 7 offense on the Criminal Punishment Code’s offense severity ranking chart (OSRC) under s. 921.0022, F.S.
6 A second-degree felony is punishable by up to 15 years’ imprisonment and a $10,000 fine. Id.
7
Ranked as a Level 5 offense on the OSRC.
8 A third-degree felony is punishable by up to 5 years ’ imprisonment and a $5,000 fine. Id.
9 Ranked as a Level 3 offense on the OSRC.
10 S. 817.034(4)(a)(1.-3.), F.S.
11 Section 817.034(3)(a), F.S., defines “communicate” to mean transmitting or transferring or causing another to transmit or tra nsfer
signs, signals, writing, images, sounds, data, or intelligences of any nature in whole or in part by mail, or by wire, radio ,
electromagnetic, photoelectronic, or photooptical system.
12 S. 817.034(4)(b), F.S.
13 This offense is unranked on the OSRC, and as such, defaults to the statutorily assigned level as described in s. 921.0023, F. S.
Accordingly, because the offense is punis hable as a third-degree felony it is ranked as a Level 1 offense on the OSRC.
14 A first-degree misdemeanor is punishable by a term of imprisonment not exceeding one year and a $1,000 fine. Ss. 775.082 and
775.083, F.S.
15 S. 817.034(4)(c), F.S.
STORAGE NAME: h1171d.JDC PAGE: 2
DATE: 2/21/2024
continuously absent from the state or is without a reasonably ascertainable place of abode or
work within the state, but the period of limitation otherwise applicable may not be extended by
more than one year.16
Criminal Punishment Code
Felony offenses which are subject to the Criminal Punishment Code17 are listed in a single offense
severity ranking chart (OSRC),18 which uses 10 offense levels to rank felonies from least severe to
most severe. Each felony offense listed in the OSRC is assigned a level according to the severity of the
offense.19, 20 A person’s primary offense, any other current offenses, and prior convictions are scored
using the points designated for the offense severity level of each offense. 21, 22 The final score
calculation, following the scoresheet formula, determines the lowest permissible sentence that a trial
court may impose, absent a valid reason for departure.23
Evidencing Prejudice While Committing an Offense
Section 775.085, F.S., reclassifies the penalty for any felony or misdemeanor to the next highest
degree if the commission of the offense evidences prejudice based on the race, color, ancestry,
ethnicity, religion, sexual orientation, national origin, homeless status, or advanced age 24 of the victim,
as follows:
A misdemeanor of the second-degree is reclassified to a misdemeanor of the first-degree;
A misdemeanor of the first-degree is reclassified to a felony of the third-degree.
A felony of the third-degree is reclassified to a felony of the second-degree.
A felony of the second-degree is reclassified to a felony of the first-degree.
A felony of the first-degree is reclassified to a life felony.25
The offender must have perceived, known, or have had reasonable grounds to perceive or know that
the victim was within one of the classes delineated above for the penalty reclassification to apply.26
Civil Cause of Action
Additionally, a person or organization that establishes by clear and convincing evidence that it has
been coerced, intimidated, or threatened in violation of s. 775.085, F.S., has a civil cause of action for
treble damages,27 an injunction, or any other appropriate relief in law or in equity. Upon prevailing in
such civil action, the plaintiff may recover reasonable attorney fees and costs. 28
Evidencing Prejudice While Committing an Offense Against a Person with a Mental or Physical
Disability
16 S. 817.034(4)(d), F.S.
17 All felony offenses, with the exception of capital felonies, committed on or after October 1, 1998, are subject to the Crimin al
Punishment Code. S. 921.002, F.S.
18 S. 921.0022, F.S.
19 S. 921.0022(2), F.S.
20 Felony offenses that are not listed in the OSRC default to statutorily assigned levels, as follows: an unlisted third -degree felony
defaults to a Level 1; an unlisted second-degree felony defaults to a Level 4; an unlisted first-degree felony defaults to a Level 7; an
unlisted first-degree felony punishable by life defaults to a Level 9; and an unlisted life felony defaults to a Level 10. S. 921.0023, F.S.
21 Ss. 921.0022 and 921.0024, F.S.
22 A person may also accumulate points for factors such as victim inju ry points, community sanction violation points, and certain
sentencing multipliers. S. 921.0024(1), F.S.
23 If a person scores more than 44 points, the lowest permissible sentence is a specified term of months in state prison, determ ined by
a formula. If a person scores 44 points or fewer, the court may impose a nonprison sanction, such as a county jail sentence, probation,
or community control. S. 921.0024(2), F.S.
24 Section 775.085(1)(b)1., F.S., defines “advanced age” to mean that the victim is older than 65 years of age.
25 S. 775.085(1)(a), F.S.
26 S. 775.085(3), F.S.
27 “Treble damages” are damages that, by statute, are three times the amount that the fact-finder determines is owed. Black’s Law
Dictionary (3d pocket ed. 2006).
28 S. 775.085(2), F.S.
STORAGE NAME: h1171d.JDC PAGE: 3
DATE: 2/21/2024
Section 775.0863, F.S., reclassifies the penalty for any felony or misdemeanor to the next highest
degree if the commission of the offense evidences prejudice based on a mental or physical disability 29
of the victim, as follows:
A misdemeanor of the second-degree is reclassified to a misdemeanor of the first-degree.
A misdemeanor of the first-degree is reclassified to a felony of the third-degree.
A felony of the third-degree is reclassified to a felony of the second-degree.
A felony of the second-degree is reclassified to a felony of the first-degree.
A felony of the first-degree is reclassified to a life felony.30
The offender must have perceived, known, or have had reasonable grounds to perceive or know that
the victim was within the class delineated above for the penalty reclassification to apply.31
Civil Cause of Action
Additionally, a person or organization that establishes by clear and convincing evidence that it has
been coerced, intimidated, or threatened in violation of s. 775.0863, F.S., has a civil cause of action for
treble damages, an injunction, or any other appropriate relief in law or in equity. Upon prevailing in such
civil action, the plaintiff may recover reasonable attorney fees and costs. 32
Unauthorized Publication of Name or Likeness
Florida courts recognize the common law tort of unauthorized publication of another’s name or likeness
(sometimes referred to as “appropriation”).33 Florida law also codifies this tort in s. 540.08, F.S.,
providing generally the same elements as the common law tort. 34 Specifically, s. 540.08, F.S., prohibits
a person from publishing, printing, displaying, or otherwise publicly using for purposes of trade or for
any commercial or advertising purpose35 the name, photograph, or other likeness of any natural person
without the express written or oral consent to such use given by:
The natural person whose name or likeness is to be used; 36
Any other person authorized in writing by such person to license the commercial use of his or
her name or likeness; or
If such person is deceased:
o Any person authorized in writing to license the commercial use of the decedent’s name
or likeness; or
o If no person is so authorized, then by the decedent’s surviving spouse or any one of his
or her surviving children.37
If proper consent is not obtained, the person whose name or likeness was appropriated, or any person
authorized to consent to the commercial use of the name or likeness, may sue under the statutory
cause of action to enjoin the unauthorized use and recover damages, including an amount that would
29
Section 775.0863, F.S., defines “mental or physical disability” to mean a condition of mental or physical incapacitation due to a
developmental disability, organic brain damage, or mental illness, and one or more mental or physical limitations that restrict a person’s
ability to perform the normal activities of daily living.
30 S. 775.0863(1)(a), F.S.
31 S. 775.0863(3), F.S.
32
S. 775.0863(2), F.S.
33 Coton v. Televised Visual X-Ography, Inc., 740 F. Supp.2d 1299 (M.D. Fla. 2010).
34 A plaintiff may plead an unauthorized publication cause of action under both the statutory and common law remedies . A cause of
action may exist under the common law tort regardless of whether the unauthorized publication was for trade, commercial, or
advertising purposes as required by statute. Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002).
35 A “commercial or advertising purpose” does not include publications which do not d irectly promote a product or service. It is not
enough that a publication is offered for sale; rather, the liability inquiry turns on whether the plaintiff’s name or likenes s is associated
with something else within the publication. Tyne v. Time Warner Entertainment Co., L.P., 901 So. 2d 802 (Fla. 2005); Loft v. Fuller, 408
So. 2d 619 (Fla. 4th DCA 1981); Valentine v. CBS, Inc., 698 F. 2d 430 (11th Cir. 1983).
36 Consent may only be given on behalf of a minor by his or her parent or guardian. S. 540.08(6), F.S.
37 A person’s “surviving spouse” is the person’s surviving spouse under the law of his or her domicile at the time of his or her death,
whether or not the spouse has later remarried, and a person’s “surviving children” are his or her immediate offsprin g and any children
legally adopted by the person. S. 540.08(1) and (6), F.S.
STORAGE NAME: h1171d.JDC PAGE: 4
DATE: 2/21/2024
have been a reasonable royalty.38, 39 The court may also impose a civil penalty of up to $1,000 per
violation if the person whose name or likeness was appropriated is a member of the armed forces. 40
However, only the individual whose privacy was invaded may sue for unauthorized publication at
common law.41
Further, the statutory cause of action does not apply to, and Florida courts generally recognize common
law exceptions for:
The publication, printing, display, or use of the name or likeness of any person in any
newspaper, magazine, book, news broadcast or telecast, or other news medium or publication
as part of any bona fide news report or presentation having a current and legitimate public
interest and where such name or likeness is not used for advertising purposes;
The use of a name or likeness in connection with the resale or other distribution of literary,
musical, or artistic productions or other merchandise or property where the person has
consented to the use of his or her name or likeness on or in connection with the initial sale or
distribution of the items; or
Any photograph of a person solely as a member of the public, where such person is not named
or otherwise identified in or in connection with the u