Mogavero v. State

Summary

The Florida Fourth District Court of Appeal reversed two convictions for acting as a mortgage broker without a license because the jury instruction improperly permitted conviction based on constructive knowledge rather than the actual knowledge required by the statute. The court affirmed two convictions for collecting an advance fee by a loan broker and affirmed the revocation of probation. The case was remanded.

Holdings

1. The statutory term "knowingly" requires actual knowledge or awareness that the defendant is acting as a mortgage broker without a license; an instruction permitting conviction based on constructive knowledge improperly enlarges the offense.
2. The erroneous instruction was reversible because the jury might reasonably have been misled and the defendant's defense directly disputed the required knowledge.
3. The alleged prosecutorial errors were not fundamental error and were not preserved for review; however, the court noted that comments concerning Mogavero's reasons for consulting an attorney would be improper on retrial.
4. The two convictions under section 687.141(1) were sufficient to support revocation of probation.

Questions Presented

1. Whether the trial court improperly expanded the statutory mens rea for acting as a mortgage broker without a license by instructing the jury that knowledge could be constructive.
2. Whether the erroneous jury instruction constituted reversible error where the defendant's theory of defense disputed knowing commission of the offense.
3. Whether unobjected-to prosecutorial closing-argument comments constituted fundamental error.
4. Whether the trial court erred in giving a principals instruction or in finding no discovery violation.
5. Whether the convictions under section 687.141(1) supported revocation of probation.

Disposition

reversed_and_remanded