Statutes updated from Official Statutes on: January 26, 2022
" 817.68 Part II not exclusive. — This part [II] shall not be construed to preclude the applicability of any other provision of the criminal law of this state which presently applies or may in the future apply to any transaction which violates this part, unless such provision is inconsistent with the terms of this part."
In State v. McCurdy, supra, the Second District Court of Appeal interpreted Section 817.68 to require irreconcilable conflict between the act and another law before "denying a clear field of operation to either, at the election of the State." 257 So.2d at 94. The court noted that the intent of Section 817.68 is to make prosecution under the act non-exclusive, rather than exclusive. See also McConnell v. State, 298 So.2d 550 (Fla.App.2d 1974).
Appendix "B" to this Opinion is a list of differences between the federal and state regulations that appear to have been the result of inadvertence rather than a conscious decision to promulgate different regulatory provisions. The list includes omitted phrases and words, and errors in cross-referencing regulations. These errors should be corrected before the regulations are made effective to insure the apparent intended consistency between state and federal regulations. Inadvertence was probably the reason for Oklahoma 817.68(j) repeating the language found in 817.68(i) rather than adopting the substance of the federal counterpart to 817.68 (j) . Inadvertence also was the probable cause of the Oklahoma 817.68 (o) inconsistent language compared to the federal subsection.
Oklahoma 817.68(j) repeating the language found in 817.68(i) rather than adopting the substance of the federal counterpart to 817.68 (j) . Inadvertence also was the probable cause of the Oklahoma 817.68 (o)
817.50, 817.52, 817.53, 817.54, 817.55, 817.56, 817.57, 817.59, 817.61, 817.62, 817.65, 817.67, 817.68, 817.71, 817.72, 817.73, 817.74, 817.81, 817.82, 817.83, 817.85, 817.86, 817.87, 817.88, 817.89,
The defendant counters, first, that it is willing to forgo pricing or revenue information. Second, the defendant disputes that this discovery may reveal trade secrets because state regulation requires blasting records to be maintained and available for public inspection. S S Blasting disagrees and argues the only applicable state regulation, 805 KY. ADMIN. REG. § 4:050, does not permit public inspection but, instead, merely requires that blasting records be made available for inspection by the Kentucky Department for Natural Resources. S S Blasting argues that other regulations cited by the defendant pertain to surface mining, e.g., 30 C.F.R. § 817.68; 405 KY. ADMIN. REG. § 16:120, and are facially inapplicable. The magistrate judge agrees and concludes that S S Blasting's claim of trade secret protection is not negated by state regulation because it only permits a government entity's regulatory access to the blasting records at issue, and does not make the records available to the general public.
It is not unusual for a course of criminal conduct to violate laws that overlap yet vary in their penalties. Multiple sentences are even allowed for conduct arising from the same incident. (Citation omitted.) Traditionally, the legislature has left to the prosecutor's discretion which violations to prosecute and hence which range of penalties to visit upon the offender. Section 817.68 of the state Credit Card Crime Act suggests no legislative retreat from this practice. We do not read the section to require exclusive prosecution under this act when the elements of other criminal law are also present. We hold the petitioner was properly convicted and sentenced for knowingly receiving stolen property under section 811.16, Florida Statutes (1973).
We note in passing that this case is distinguishable from the recent supreme court decision in Fayerweather v. State, 332 So.2d 21 (Fla. 1976). There it was held that conduct violative of both the State Credit Card Crime Act (specifically Section 817.60(1)(3), Florida Statutes , dealing with receiving stolen credit cards) and the statute making it unlawful to receive stolen property (Section 811.16) may be punished under the latter statute, notwithstanding that the State Credit Card Crime Act sets a less severe punishment. Unlike the vehicular homicide statute, the State Credit Card Crime Act provides that it "shall not be construed to preclude the applicability of any other provision of the criminal law . . . unless such provision is inconsistent with [its] terms. . . ." Section 817.68, Florida Statutes (1973).
This reasoning stands or falls on the initial premise that the original information charged only a misdemeanor. The defendants base their argument upon the language of the State Credit Card Crime Act of 1967, Sections 817.57- 817.68, Florida Statutes, as construed by this Court's holding in Lore v. State, 267 So.2d 699 (Fla. 4th DCA 1972). That decision, however, was disapproved by the Supreme Court of Florida in the recent case of Fayerweather v. State, 332 So.2d 21 (Fla. 1976). There the Court, ruling on the precise question here presented, approved a felony conviction and five-year sentence for receiving a stolen credit card in violation of Section 811.16, Florida Statutes (1973), and rejected the contention that the maximum permissible sentence was the one-year misdemeanor penalty provided by Section 817.67(1) of the State Credit Card Crime Act.
The court also referred to § 817.68, F.S.A., which specifically provides that the State Credit Card Crime Act shall not be construed to preclude the applicability of any other provision of the criminal law of the state unless such provision is inconsistent with the terms of the Act.
This Court formerly held that if conduct constituted a violation of a state criminal statute which was enacted before the State Credit Card Crime Act of 1967 and at the same time constituted a violation of that act, the penal provisions of the State Credit Card Crime Act should govern the sentence if such penal provisions are inconsistent with those which pertain to the offense defined by the earlier law. This was based upon a literal interpretation of the language of Section 817.68, Florida Statutes, which provides that the provisions of the State Credit Card Crime Act of 1967 are not exclusive "unless such provision [of another criminal statute] is inconsistent with the terms of this part." Lore v. State, 267 So.2d 699 (Fla. 4th DCA 1972); Strada v. State, 267 So.2d 702 (Fla. 4th DCA 1972); and Pastoria v. State, 312 So.2d 808 (Fla. 4th DCA 1975). A different conclusion was reached by each of the First, Second, and Third District Courts of Appeal. In Fayerweather v. State, 332 So.2d 21 (Fla. 1976), the Supreme Court resolved the conflict between district courts by holding that conduct which is violative of both the State Credit Card Crime Act and a criminal statute of…