State v. Butts

PER CURIAM.

The State of Florida appeals an order which dismissed an information charging an attorney with allegedly violating Section 440.37(2)(b)2, Florida Statutes (1983). We agree with the trial court and affirm.

The information filed below alleges that the defendant Bernard H. Butts, Jr., an attorney, knowingly and willfully urged a gertain person to stage a fake work accident with the City of Hialeah and to thereafter file a worker’s compensation claim containing false and misleading information. It is therefore clear, according to the information, that the person urged to file this false claim was not at the time a worker’s compensation claimant, although he was potentially such a claimant.

Section 440.37(2)(b)2, Florida Statutes (1983), provides in relevant part as follows:

“Any attorney who knowingly and willfully ... urges any claimant to fraudulently violate any of the provisions of this chapter ... is guilty of a felony of the third degree, punishable as provided in s. 775.082, .s. 775.083, or s. 775.084.” (emphasis added).

An essential element of the crime under this statute is that the person whom the attorney urges to violate a provision of the workers’ compensation chapter must be, unlike this case, a worker’s compensation claimant. The trial court was, therefore, eminently correct in dismissing the information on the basis that the information failed to allege this essential element of the crime charged and, indeed, alleged facts which, even if true, would not constitute a violation of Section 440.37(2)(b)2, Florida Statutes (1983). See State v. Dye, 346 So.2d 538, 541 (Fla.1977).

Affirmed.