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State v. Mark Marks, P.A.
Citations: 833 So. 2d 249; 2002 Fla. App. LEXIS 19137Docket: Nos. 4D01-4622, 4D02-658
Court: District Court of Appeal of Florida; December 25, 2002; Florida; State Appellate Court
Criminal defendants charged as principals in the perjury of another are entitled to the defense outlined in section 837.07 of the Florida Statutes if the actual perjurer recants their testimony. The court affirmed the circuit court's dismissal order in the case against attorneys Mark Marks and Carl Borgan, who were charged with perjury for allegedly aiding their client, Howard Drinks, in making false statements under oath. Drinks later recanted his false statements, which did not impact the underlying personal injury case. Marks and Borgan moved to dismiss the charges, and the trial court agreed, stating there was no offense of perjury following the recantation, thereby negating the basis for the aiding and abetting charges under section 777.011. The state charged the attorneys under section 837.02(1), which criminalizes making false statements under oath. However, section 837.07, enacted in 1990, allows recantation as a defense to perjury if the recantation occurs in the same proceeding and does not significantly affect the case. The statute’s language applies broadly to "any prosecution for perjury," including charges under the principals statute. Historical common law also recognized recantation as a valid defense to perjury. Thus, Drinks’s recantation effectively nullified the perjury charges against Marks and Borgan. The Supreme Court ruled that a recantation in a letter serves as a valid defense to perjury, despite occurring after the likelihood of the false testimony being revealed. Dr. Carter voluntarily corrected his earlier deposition, did not gain from his false statement, and his recantation did not prejudice anyone or affect the proceedings. The court emphasized that the fear of exposure does not invalidate the recantation defense. Under section 837.07, this defense applies if (1) the false statement did not substantially affect the proceedings or (2) the admission occurred before it was clear that the falsehood would be exposed. Unlike prior common law, section 837.07 permits recantation even if the proceedings were substantially affected, provided the admission was made prior to exposure. The court endorsed a dissenting opinion from a related case, asserting that an effective recantation negates the commission of perjury. Florida law rejects the notion that perjury is complete upon making a false statement. Additionally, the court dismissed the state's claim regarding the potential for conviction on solicitation of perjury, noting that this argument was not preserved for appeal since it was not raised in the lower court. The absence of a jury instruction on a lesser included offense is not deemed fundamental error in non-capital cases. The court affirmed the dismissal of the perjury charges.