Filing # 72383343 E-Filed 05/18/2018 04:16:27 PM

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA

STATE OF FLORIDA CASE NO.: 50-2018-CF-003875-AXX

Plaintiff,
v.

SUSAN INCE HAYNIE,

Defendant.
___________________________/

MOTION TO DISMISS INFORMATION

SUSAN INCE HAYNIE (“Haynie”), through undersigned counsel, pursuant to Rule(s)

3.190 and 3.140, Fla.R.Cr.P., moves to dismiss the Information filed in the instant case. As

grounds, Haynie states the following:

I
BACKGROUND

Haynie, the elected Mayor of Boca Raton, Florida was charged in an April 24, 2018

Information with four (4) felonies (Counts I through IV) and three (3) misdemeanors (Counts V

through VII). The allegations set forth in the Information relate to Haynie’s alleged conduct while

Boca Raton, Florida’s Mayor. Specifically, in Counts I through III, Haynie is charged with

“Official Misconduct” in violation of Florida Statute 838.022(1) and (3). Count IV alleges Perjury

in an Official Proceeding, in violation of Florida Statute 837.02(1). Counts V, VI and VII allege

misdemeanor violations of the Palm Beach County Ethics Code relating to Misuse of Public Office

or Employment in violation of Section 2-443(a), Corrupt Misuse of Official Position in violation of

Section 2-443(b) and Failure to Disclose Voting Conflicts in violation of Section 2-443(c).

Haynie’s Motion to Dismiss is being filed prior to the scheduled May 24, 2018 Arraignment

in her case. Haynie anticipates filing a Written Plea of Not Guilty following the filing of this

Motion to Dismiss Information. Haynie will seek to set a hearing concerning this Motion to
Dismiss Information, if necessary. Haynie requests additional time to file subsequent Motion(s) to

Dismiss, should a basis for additional Motion(s) arise, or be discovered by Haynie.

Haynie will individually address the grounds for dismissal of each of the seven (7) counts

of the Information.

II
COUNT I OF THE INFORMATION FAILS TO ALLEGE A CRIME THAT EXISTED
AT THE TIME OF THE ALLEGED OFFENSE

Count I of the Information alleges that Haynie:

on or about June 15, 2015 … did KNOWINGLY and

INTENTIONALLY obtain a benefit for herself or another or
caused unlawful harm to another … in violation of Florida
Statute 838.022(1) and (3).

Florida Statute 838.022 is titled “Official Misconduct.” The “Official Misconduct” statute

has gone through various amendments in recent years. The version of Section 838.022 that was in

effect on the date of the alleged violation cited in Count I of the Information, June 15, 2015, read in

pertinent part:

It is unlawful for a public servant, with CORRUPT

INTENT, to obtain a benefit for any person or to cause
harm to another …

(See Exhibit “A” attached)

In 2016, the Florida legislature amended Section 838.022 (ch. 2016-151):

It is unlawful for a public servant or public contractor, to

KNOWINGLY AND INTENTIONALLY obtain a benefit for
any person or to cause unlawful harm another …

(See Exhibit “B” attached)

The 2016 amendment to Section 838.022 dramatically changed the mens rea, or intent

required to establish a violation of the Official Misconduct statute. Instead of requiring the

2
essential element of “corrupt intent” to establish the offense, the 2016 amendment only required the

reduced mens rea of “knowingly and intentionally.”

Since an individual cannot be charged with a violation of a criminal statute that was not in

existence at the time of the alleged offense, any alleged Section 838.022 violation that occurred in

2015 can only be based on a mens rea of “CORRUPT INTENT,” as opposed to the

“KNOWINGLY AND INTENTIONALLY” mens rea essential element set forth in the 2016

amendment to the statute. Stated in another manner, there was no crime in Florida in 2015 of

“knowingly and intentionally” violating the provisions of Section 838.022.

However, despite there not being a crime in Florida on June 15, 2015 for “knowingly and

intentionally” violating Section 838.022, Haynie’s Information in Count I alleges such a violation.

Not only can a defendant not be charged with a non-existent crime, this Court does not have

subject matter jurisdiction over a non-existent criminal offense.

It goes without saying that charging an individual with a non-existent crime is a

fundamental violation of numerous provisions of both the United States and Florida Constitution

relating to due process and basic sixth amendment rights. While it would seem unlikely that the

State of Florida would argue that Haynie could be charged with a violation of a nonexistent

criminal statute, that position would be advocating for a result that would be a clear violation of the

ex post facto protections guaranteed by the Constitution.

Since Haynie was charged in Count I with the 2016 version of a criminal statute for an

alleged offense that took place in 2015, and since there was a material change in an essential

element of the offense in the 2016 amended statute, Count I of the Information must be dismissed.

3
 III
COUNT II OF THE INFORMATION ALLEGES A CRIME THAT DID NOT EXIST
AT THE TIME OF THE ALLEGED OFFENSE

Count II of the Information alleges a violation of Section 838.022 and that Haynie:

on or about June 10, 2016 … did, KNOWINGLY AND

INTENTIONALLY obtain a benefit for herself or another or
caused unlawful harm to another …

The same basis for dismissal of Count I of the Information applies to Count II of the

Information, since the offense alleged in Count II of the Information was a non-existent crime as of

June 10, 2016. The critical issue in determining whether the alleged offense that occurred on or

about June 10, 2016 is governed by the 2016 “KNOWINGLY AND INTENTIONALLY”

amendment or the pre-2016 “CORRUPT INTENT” version of the statute is the effective date of the

2016 amendment to the Statute.

The amendment to Florida Statute 838.022 that materially changed the mens rea or intent

required to establish violation of the statute is set forth in Ch. 2016-151. Section 11 of 2016-151

states:

This act shall take effect October 1, 2016.

(See Exhibit “C” attached)

Since the alleged violation of Section 838.022 occurred on or about June 10, 2016 and the

amended version of Section 838.022 did not take effect until October 1, 2016, Haynie cannot be

charged with a violation of the amended statute. Additionally, the amended statute has a material

change in an essential element of the offense, which would cause application of the statute to

Haynie to violate the ex post facto and due process protections of the Constitution. Accordingly,

Count II of the Information must be dismissed.

4
 IV
COUNT III OF THE INFORMATION FAILS TO SET FORTH ESSENTIAL FACTS
TO CONSTITUTE THE OFFENSE CHARGED

Count III of the Information alleges a violation of Florida Statute 838.022 taking place on

January 4, 2017. Other than listing Haynie’s name, the date of the alleged offense and Palm Beach

County, Count III fails to set forth any facts that even give a hint as to what allegedly constituted

violation of the statute. Count III does regurgitate the language of the statute, much of which will

most likely have no application to Haynie and in fact, constitute surplusage, subject to a motion to

strike pursuant to Rule 3.140 (i), Fla.R.Cr.P.

The Florida Rules of Criminal Procedure recognize the need of the charging instrument to

inform a defendant of the allegations against them. Rule 3.140 (d)(1) states in pertinent part that:

Each count of an indictment or information on

which the defendant is to be tried shall allege the
essential facts constituting the offense charged.

Haynie understands that a potential remedy of a bill of particulars might arguably remedy

the failure of Count III of the Information to provide any facts necessary to give Haynie notice of

the alleged violation of 838.022. However, Haynie in this application, seeks to not only to protect

her Constitutional right to proper notice of the allegations against her, but also to ensure that her

jury is aware of what factual allegations they need to be considering in their deliberations, should

Haynie’s case go to a jury.

In evaluating the need to dismiss Count III of the Information the Florida Rules of Criminal

Procedure provide the appropriate criteria:

No indictment or information, or any count thereof, shall

be dismissed … unless the court shall be of the opinion that
the indictment or information is so vague, indistinct and
indefinite as to mislead the accused and embarrass her in
the preparation of a defense or expose the accused after

5
 conviction or acquittal to substantial danger of a new
prosecution for the same offense.

Rule 3.140 (o) Fla.R.Cr.P.

An allegation in an Information such as Count III, which provides no factual information

and merely recites the verbiage of a statute containing multiple provisions fails to satisfy

Constitutional notice requirements, as well as the intent and purpose of the cited rules of criminal

procedure. Haynie therefore requests that Count III be dismissed.

V
COUNT IV FAILS TO IDENTIFY ANY FALSE STATEMENTS TO
SUPPORT AN ALLEGATION OF PERJURY

Count IV of the Information alleges perjury in an official proceeding. The only reference to

a false statement in Count IV is the following:

did make a false statement to wit: made false statements

regarding Community Reliance LLC, Computer Golf
Software, surveillance cameras, primary sources of
income, and secondary sources of income.

There is absolutely no reference in Count IV to what alleged false statement Haynie is

being accused of making. It is impossible for Haynie to defend against an allegation of making a

false statement without knowing what the State of Florida is alleging to be the false statement.

Likewise, it would be impossible for a jury to determine whether the allegation of perjury set forth

in Count IV had been proved without knowing what alleged false statement the jury should be

considering. Count IV describes the subject matter of the alleged false statements as opposed to the

actual alleged false statements.

Additionally, Count IV alleges that the false statement took place in an official proceeding.

However, Count IV fails to allege what official proceeding the alleged false statement took place.

Without notice of the official proceeding in the Information, Haynie cannot prepare a defense, and

6
Haynie’s jury will not know what official proceeding they should be determining to have been

proved or not.

Haynie would therefore request dismissal of Count IV of the Information.

VI
COUNTS V THROUGH VII FAIL TO ALLEGE A
CRIMINAL VIOLATION OF THE PALM BEACH COUNTY CODE
OF ETHICS

Counts V, VI and VII of the Information allege violation of Sections 2-443(a), 2-443(b) and

2-443(c) of the Palm Beach Code of Ethics. The allegations in the Information for Count V, VI

and VII repeat verbatim the language set forth in the cited provisions of the Palm Beach Code of

Ethics (“PBCE”).

None of the provisions from the PBCE described in Haynie’s Information identify a

penalty for violation. Section 2-448 of the PBCE is titled “administration, enforcement and

penalties.” It is clear from that section of the PBCE that violations of certain provisions of the

PBCE can be charged as either a civil or a criminal matter. The determination whether a violation

of the PBCE should be considered civil or criminal is based upon whether the violation was in fact

“willful.” See 2-448 (d) (See Exhibit “D” attached).

Based upon the the determinations and distinctions established by the PBCE, a criminal

violation of a provision of the PBCE must be a willful violation. Obviously, anyone charged with a

criminal violation of the PBCE must have that allegation assert that their violation was “willful.”

Failure to allege that a violation of the PBCE was “willful” would fail to allege a criminal offense.

Counts V, VI and VII of the Information fail to allege that Haynie’s alleged violations of

the PBCE were “willful” violations. Since an allegation that the PBCE has been violated without

an averment of a willful violation is a non-criminal allegation, Counts V, VI and VII fail to state a

7
criminal offense and must be dismissed. This Court additionally does not have subject matter

jurisdiction to consider noncriminal violations of the PBCE.

VII
CONCLUSION

Based upon the issues set forth in this Motion to Dismiss, Haynie would request that each

of the seven (7) counts of the Information be dismissed at this time. Haynie will refrain from

setting this Motion for hearing until the State of Florida determines whether they will seek to

amend the Information to comply with legal authority.

Wherefore, SUSAN INCE HAYNIE, requests that this Motion to Dismiss each count of the

Information be granted.

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document was electronically filed with the Clerk of Court

using the Florida E-Filing Portal and that a true and correct copy of this document has been served

electronically to the Office of the State Attorney, 401 N. Dixie Highway, West Palm Beach,

Florida 33401 on this 18th day of May, 2018.

/s/ BRUCE A. ZIMET, ESQ.

Florida Bar No. 0225053

BRUCE A. ZIMET, P.A.

One Clearlake Centre
250 N. Australian Avenue
Suite 1400
West Palm Beach, FL 33401
Tel: (561) 508-7741
Tel: (954) 764-7081
Fax: (954) 760-4421
Email: BAZ@BruceAZimetLaw.com

8
Chapter 838 Section 022 - 2015 Florida Statutes - The Florida Senate https://www.tlsenate.gov/Laws/Statutes/2015/838.022

The Florida Senate EXHIBIT "A"

2015 Florida Statutes
Title XLVI 01apter838 1SECTION 022
l
CRIMES BRIBERY; MISUSE OF PUBUC Official misconduct.
OFFICE

L_ Entire Chapter
- - - - -- - -
838.022 Official misconduct. -
(1) It is unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to
another, to:
(a) Falsify, or cause another person to falsify, any official record or official document;
(b) Conceal, cover up, destroy, mutilate, or alter any official record or official document or cause another person to
perform such an act; or
(c) Obstruct, delay, or prevent the communication of information relating to the commission of a felony that
directly involves or affects the public agency or public entity served by the public servant.
(2) For the purposes of this section:
(a) The term "public servant" does not include a candidate who does not otherwise qualify as a public servant.
(b) An official record or official document includes only public records.
(3) Any person who violates this section commits a felony of the third degree, punishable as provided in s.
775.082, s. 775.083, ors. 775.084.
History.-s. 5, ch. 2003-158.

Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers
should be consulted for official purposes.

Copyright © 2000- 2018 State of Florida.

I of I 5/ 18/2018, 1:30 PM
Statutes & Constitution :View Statutes: Online Sunshine http://www. leg.state. fl .us/statutes/index.cfm?App_mode=Display_Sta...

EXHIBIT "B"

Select Year: 2017 Go

The 2017 Florida Statutes

Title XLVI Chapter 838 View Entire Chapter
CRIMES BRIBERY; MISUSE OF PUBLIC OFFICE
838.022 Official misconduct. -
(1) It is unlawful for a public servant or public contractor, to knowingly and intentionally obtain a
benefit for any person or to cause unlawful harm to another, by:
(a) Falsifying, or causing another person to falsify, any official record or official document;
(b) Concealing, covering up, destroying, mutilating, or altering any official record or official document,
except as authorized by law or contract, or causing another person to perform such an act; or
(c) Obstructing, delaying, or preventing the communication of information relating to the commission
of a felony that directly involves or affects the government entity served by the public servant or public
contractor.
(2) For the purposes of this section:
(a) The term "public servant" does not include a candidate who does not otherwise qualify as a public
servant.
(b) An official record or official document includes only public records.
(3) Any person who violates this section commits a felony of the third degree, punishable as provided in
s. 775.082, s. 775.083, ors. 775.084.
History.-s. 5, ch. 2003·158; s. 4, ch. 2016-151.

Copyright o 1995-2018 The Florida Legislature • Privacv Statement • Contact Us

I of 1 5/ 18/20 18, 1:29 PM

 EXHIBIT "C"

Ch. 2016-151 LAWS OF FLORIDA Ch. 2016-151

discretion of the other public servant, in violation of a public duty, or in

performance of a public duty.
Section 4. Subsection (1) of section 838.022, Florida Statutes, is
amended, and subsection (2) of that section is republished, to read:
838.022 Official misconduct.-
(1) It is unlawful for a public servant or public contractor, with eo~
iftte&t to knowingly and intentionally obtain a benefit for any person or to
cause unlawful harm to another, by to:
(a) Falsifying Falsify, or causing eEmSe another person to falsify, any
official record or official document;
(b) Concealing, covering up, destroying, mutilating, or altering Coaeeal,
eo..·e:r ap, destroy, matilate, o:r alte:r any official record or official document~
except as authorized by law or contract, or causing eaase another person to
perform such an act; or
(c) Obstructing, delaying, or preventing Obstruet, delay, o:r prevent the
communication of information relating to the commission of a felony that
directly involves or affects the government pablie ageney OF pablie entity
served by the public servant or public contractor.
(2) For the purposes of this section:
(a) The term "public servant" does not include a candidate who does not
otherwise qualify as a public servant.
(b) An official record or official document includes only public records.
Section 5. Section 838.22, Florida Statutes, is amended to read:
838.22 Bid tampering.-
(1) It is unlawful for a public servant or a public contractor who has
contracted with a governmental entity to assist in a competitive procure-
ment, with eQHUPt iatent to knowingly and intentionally influence or
attempt to influence the competitive solicitation biddiag proeess undertaken
by any governmental state, eotlftty, ml:mieipal, OP speeial distriet ageney, OF
any othe:r pab!W entity, for the procurement of commodities or services, by
to:
(a) Disclosing. except as authorized by law. Diselose material informa-
tion concerning a vendor's response. any evaluation results, &iEl or other
aspects of the competitive solicitation biddiag pFoeess when such informa-
tion is not publicly disclosed.
(b) Altering or amending AlteP or amend a submitted response bid,
documents or other materials supporting a submitted response bid, or any
evaluation bid results relating to the competitive solicitation for the purpose
3
CODING: Words stri:ekea are deletions; words underlined are addition.s.
Ch. 2016-151 LAWS OF FLORIDA Ch. 2016-151

Florida Felony
Statute Degree Description
847.0135(5)(c) 3rd Lewd or lascivious exhibition using com-
puter; offender less than 18 years.
874.05(1)(a) 3rd Encouraging or recruiting another to join
a criminal gang.
893.13(2)(a)l. 2nd Purchase of cocaine (or others.
893.03(1)(a), (b), or (d), (2)(a), (2)(b), or
(2)(c)4. drugs).
914.14(2) 3rd Witnesses accepting bribes.
914.22(1) 3rd Force, threaten, etc., witness, victim, or
informant.
914.23(2) 3rd Retaliation against a witness, victim, or
informant, no bodily injury.
918.12 3rd Tampering with jurors.
934.215 3rd Use of two-way communications device to
facilitate commission of a crime.

Section 11. This act shall take effect October 1, 2016.

Approved by the Governor March 25, 2016.
Filed in Office Secretary of State March 25, 2016.

17
CODING: Words striekea are deletions; words underlined are additions.
 EXHIBIT "D"

Sec. 2-446. Ethics training.

(a) Offi.cials and employees, as public servants, are considered stewards of the public trust and
should aspire to the highest level of integrity and character. Officials and employees shall be
informed of their ethical responsibilities at the start of their public service, and shall receive
updates and training materials on ethics issues throughout the span of their public service. The
county administrator or municipa l administrator as applicable ·shall establish by policy a
mandatory training schedule for all officials and employees which shall include mandatory
periodic follow-up sessions. This policy may also address ethics training for entities that receive
county or municipal funds as applicable.
(b) The commission on ethics shall develop and deliver, or contract with other entities to develop
and deliver, training programs. The commission on ethics shall coordinate and cooperate with
all affected county or municipal entities, departments, agencies, boards, councils and
commissions to ensure that ·effective and meaningful training experiences are delivered in a
timely and efficient manner.

Sec. 2-447. Noninterference.

It shall be a violation of this article for any person: (a) to retaliate against, punish, threaten, harass, or
penalize any person for communicating, cooperating with, or assisting the commission on ethics or the
inspector genera l; or (b) to interfere, obstruct or attempt to interfere or obstruct without valid legal
basis any investigation conducted by the commission on ethics or the inspector general.

Sec. 2-448. Administration, enforcement and penalties.

(a) The commission on ethics shall be empowered to review, interpret, render advisory opinions,
and enforce this code of ethics pursuant to the procedures established in the county
commission on ethics ordinance. Jurisdiction of the commission on ethics with respect to
advisory opinions rendered shall extend to all county and municipal officials and employees, and
all other persons and entities required to comply with the provisions of this code and the county
lobbyist registration ordinance, including but not limited to lobbyists, their employers and
principals, and contractors and vendors.
(b) A finding by the commission on ethics of a violation of any part of this article shall subject the
person or entity to public reprimand, a fine of up to five hundred dollars ($500), or both. The
commission on ethics may also order the person or entity to pay restitution when the person or
entity or a third party has received a pecuniary benefit as a result of the person's violation.
(c) Upon a finding of the commission on ethics that a violation of this article or the lobbyist
registration ordinance resulted in a contract, grant, subsidy, license, permit, franchise, use,
certificate, development order or other benefit conferred by the county or municipality as
applicable, then such contract, grant, subsidy, license, permit, franchise, use, certificate,
development order or other benefit may be rescinded or declared void by the board of county
commissioners or the local municipal governing body as applicable.
(d) The commission on ethics may in its discretion refer willful violations of §§2-443, 2-444(a), 2-
444(b), 2-444(c), 2-444(e), or 2-447 to the state attorney. Pursuant to Florida Statutes, §125.69,
a person who violates the sections of the article set forth in this §2-448(d) shall be subject to
prosecution in the name of the state in the same manner as first degree misdemeanors are
prosecuted, and upon conviction, such person shall be punished by a fine not to exceed one
thousand dollars ($1,000), imprisonment not to exceed one (1) year, or both.

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