DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LEONARD ALVIN JONES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-590

[March 7, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Cheryl Caracuzzo, Judge; L.T. Case No. 

502016CF007717AXXXMB.

Carey Haughwout, Public Defender, and Travis Dunnington, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. 

Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Appellant was convicted of multiple charges including trespass of a 

structure, petit theft, and fraudulent use of a credit card in violation of 

section 817.61, Florida Statutes (2016). On appeal he argues only that 

the trial court erred in denying his motion for judgment of acquittal as to 

the fraudulent use of a credit card. He contends that in using the stolen 

credit card he never represented that he was authorized to use the card. 

Because the state had charged him alternatively with using the card or 

fraudulently representing he was the holder of the card, and the evidence 

undisputedly showed that he used the stolen card, the court did not err in 

submitting the case to the jury. We therefore affirm.

The victim whose credit card was stolen was on a retreat at a monastery 

when she received an alert that her debit card had been used to charge 

something. The victim testified that she did not give anyone permission to 

use her card. Knowing that she had not made any charges, she discovered 

that her entire purse was missing. When informed of the theft, an 
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employee of the monastery described an individual on the premises 

wearing a construction vest and acting suspiciously. The individual 

attempted to hide when he saw the employee. The employee later 

identified appellant’s picture in a photo lineup. After an officer arrived and 

commenced an investigation, he went to a McDonald’s where the debit 

card had been used twice, according to the credit card records. Pulling 

surveillance videos from the store for the time during which the 

transaction occurred, the officer developed a description and sent out a 

flyer, with an image from the video, of an individual wearing a yellow vest. 

Ten days later, the officer came into contact with the appellant, who was 

wearing a yellow vest. Appellant admitted that he was the person in the 

surveillance video.

A McDonald’s manager testified that appellant had come into the 

McDonald’s twice on the same day and made purchases with the victim’s 

credit cards. The purchaser swiped his card, and the register system 

generated a receipt. The time is recorded on the receipt. The receipts, 

however, were not required to be, and were not, signed by the appellant. 

After presentation of the state’s case, the appellant moved for judgment 

of acquittal, contending that the state had not proved he had represented 

himself as the victim when he used the card. The trial court denied the 

motion, and appellant was found guilty and convicted of the various 

charges, including fraudulent use of the credit card. He appeals.

Section 817.61, Florida Statutes (2016), makes it a crime to 

fraudulently use a credit card. The crime may be committed in alternative 

ways, as set forth in the statute:

Fraudulent use of credit cards - A person who, with intent 

to defraud . . . a person or organization providing money, 

goods, services, or anything else of value . . . uses, for the 

purpose of obtaining money, goods, services, or anything else 

of value, a credit card obtained or retained in violation of 

this part . . . , or who obtains money, goods, services, or 

anything else of value by representing, without the 

consent of the cardholder, that he or she is the holder of 

a specified card . . . violates this section. A person who, in 

any 6-month period, uses a credit card in violation of this 

section two or fewer times, or obtains money, goods, services, 

or anything else in violation of this section the value of which 

is less than $100, is subject to the penalties set forth in s. 

817.67(1). A person who, in any 6-month period, uses a credit 

card in violation of this section more than two times, or 
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obtains money, goods, services, or anything else in violation 

of this section the value of which is $100 or more, is subject 

to the penalties set forth in s. 817.67(2) (emphasis added).

As he argued in the trial court, appellant maintains the state failed to 

prove that he had represented that he was the owner of the credit card he 

used, and thus the state had failed to prove the essential elements of a 

violation of section 817.61. He relies on A.M. v. State, 794 So. 2d 645 (Fla. 

2d DCA 2001). A.M., however, is distinguishable. There, the State had 

filed a petition for delinquency against A.M. alleging:

with intent to defraud the issuer or a person or organization 

providing money, goods, services or anything else of value, 

use a credit card more than two (2) times in a six (6) month 

period or obtained money, goods, services or anything else of 

a value of greater than One Hundred Dollars ($100.00) by 

representing, without the consent of the cardholder, that 

he is the holder of the card so used, contrary to Section 

817.61, Florida Statutes . . . .

Id. (emphasis added). When A.M. used her mother’s credit card without 

her permission, she signed for her purchases in her own name and simply 

told the merchant that the card was her mother’s. Thus, because she 

never represented that she was the owner of the card and told the 

merchant that the card was her mother’s, the state failed to prove the 

charge it made.

In contrast, the information in this case charged the appellant in the 

alternative:

COUNT 3: LEONARD ALVIN JONES . . . did knowingly use a 

credit card that was obtained or retained unlawfully or 

knowing that the credit card was forged with the intent to 

defraud anyone who provided money, goods, services, or 

anything else of value or did obtain money, goods, property, 

services, or anything else of value by representing that he 

was the holder of a card without the authority of [the 

victim] . . . contrary to Florida Statutes 817.61 and 817.67(1).

(emphasis added). The state clearly proved that appellant used a credit 

card unlawfully. Therefore, the state did prove the essential elements of 

the crime, and the court correctly denied the motion for judgment of 

acquittal on this charge. 
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Even as to the alternative alleged in the information of fraudulently 

representing that appellant was the holder of the card without the 

authority of the victim, the state proved its case. Appellant swiped the 

card, and the victim testified that she did not give anyone permission to 

use her card. Although the merchant did not ask and no one checked as 

to whether he was the owner of the card or had permission to use it, we 

think in this day and age of credit card transactions which do not require 

signatures above a certain amount, the act of swiping constitutes a 

representation that the swiper had authority to use the card. As the 

Maryland appellate court observed in Clark v. State, 981 A.2d 710, 722 

(Md. Ct. Spec. App. 2009), “[o]rdinarily, when a person tenders a stolen 

credit card to a merchant as payment for goods or services, the person so 

presenting implicitly represents that he or she is the cardholder.” We agree 

with this statement.

For the foregoing reasons, we affirm the convictions and sentences.

Affirmed.

MAY and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.