Spinks v. Lindsey (590 So. 2d 24, 1991)

PER CURIAM.

Petition for writ of prohibition denied.

STONE and GARRETT, JJ., concur.

POLEN, J., dissents with opinion.

POLEN, Judge,

dissenting.

I think that this case is one where the doctrine of preemption applies. The defendant allegedly took computer programs which were copyrighted by Thomas W. Ward & Associates, Inc. When a state crime is substantially equivalent in its elements to that of a federal crime, then the prosecution of the state crime is preempted in favor of the federal one. Crow v. Wainwright, 720 F.2d 1224 (11th Cir.1983). This case seems to be one of alleged copyright infringement, which is a federal crime. See 17 U.S.C.A. § 101.

I believe that there is also support among our own Florida decisions for the application of the doctrine of preemption in this case. Pincus v. Hon. James T. Carlisle and Hon. John D. Wessel, 585 So.2d 1172 (Fla. 4th DCA 1991); Garrido v. Burger King Corp., 558 So.2d 79 (Fla. 3d DCA 1990). I would grant prohibition.