GOODPASTER v. STATE, 564 So.2d 1152 (Fla.App. 5 Dist. 1990)

EDWARD L. GOODPASTER, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

No. 89-2248.District Court of Appeal of Florida, Fifth District.
July 5, 1990. Rehearing Denied August 8, 1990.

Appeal from the Circuit Court for Citrus County; John P. Thurman, Judge.

Kent G. Whittemore of Whittemore Ramsberger, P.A., St. Petersburg, and James D. Whittemore, P.A., Tampa, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and David S. Morgan, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

AFFIRMED.

COWART, J., and ORFINGER, M., Associate Judge, concur.

GRIFFIN, J., concurs specially with an opinion.

GRIFFIN, Judge, concurring specially.

Appellant was charged with violation of section 713.34(3), Florida Statutes (1985), fraudulent misuse of construction funds. The evidence at trial revealed that appellant (falsely) signed a lien waiver affidavit to obtain the first construction draw from the lender. He then sent a post-dated check to his concrete supplier without expressly designating that the payment was

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to be applied to the job for which he obtained the money. The supplier applied the payment to another older account. Appellant claimed that when he learned of the materialman’s action, he sought to have the supplier change the payment allocation; the supplier denied it. Disregarding the statutory presumption because the state disclaimed reliance upon it, the evidence is just barely adequate to support this conviction.