GIOVANNI ARMANDO PAGANO, ETC., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Supreme Court reversed a conviction for attempted corruption by threat, holding that attempted corruption by threat cannot be a lesser included offense because the statute itself encompasses the attempt within its definition.
Attempted corruption by threat is not a lesser included offense of the crime charged because the statute itself encompasses the attempt within its definition. The conviction must be reversed and the appellant discharged.
[1] A crime that is itself an attempt to do an act or accomplish a result cannot have a lesser included offense of attempting to commit that crime.
[2] A statute defining corruption by threat may encompass the attempt to corrupt within its definition of the act itself.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If a crime is itself an attempt to do an act or accomplish a result, there can be no lesser included offense of attempting to commit that crime.”
Establishes the fundamental legal principle governing whether an attempt can be a lesser included offense
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Join FLexlaw to unlock all legal intelligenceGiovanni Armando Pagano was charged with corruption by threat under Florida Statute section 838.021 for allegedly threatening harm to a police officer…
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ALDERMAN, Justice.
This cause is before us on direct appeal from an order of the trial court upholding the constitutionality of Florida’s corruption by threat against public servant statute and affirming defendant’s conviction for the “attempted” violation of this statute. We have jurisdiction even though it is unnecessary to the determination of this cause for us to pass upon the constitutional question. P.C. Lissenden Co. v. Board of County Commissioners of Palm Beach County, 116 So. 2d 632 (Fla. 1959).
Defendant was charged by information with corruption by threat under section 838.021, Florida Statutes (1977), for allegedly threatening harm to a police officer and his family for the purpose of avoiding arrest. After trial by jury, he was found guilty of attempted corruption by threat, as a lesser included offense of the crime charged.
The determinative issue is whether attempted corruption by threat is a lesser included criminal offense under section 838.021. We find that it is not and that defendant’s conviction must be reversed.
If a crime is itself an attempt to do an act or accomplish a result, there can be no lesser included offense of attempting to commit that crime. Milazzo v. State, 377 So. 2d 1161 (Fla. 1979). In Brown v. State, 206 So. 2d 377, 381 (Fla. 1968), this court said:
[T]he trial judge must determine as a matter of law whether an attempt to commit the crime charged would itself constitute an offense under Florida law. If he determines that it does . then he must instruct the jury on the subject of such attempt, and the jury may find guilt accordingly. In this situation it is immaterial whether the accusatory pleading specifically charges an attempt ....
See also Milazzo v. State.
A reading of section 838.021, Florida Statutes (1977), reveals that the attempt to carry out the criminal act of corruption by threat is included within the definition of the act itself. It provides:
(1)Whoever unlawfully harms or threatens unlawful harm to any public servant, to his immediate family, or to any other person with whose welfare he is interested, with the intent or purpose:
(a) To influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.
(b) To cause or induce him to use or exert, or procure the use or exertion of, any influence upon or with any other public servant regarding any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.
(2) Prosecution under this section shall not require any allegation or proof that the public servant ultimately sought to be unlawfully influenced was qualified to act in the desired way, that he had assumed office, that the matter was properly pending before him or might by law properly be brought before him, that he possessed jurisdiction over the matter, or that his official action was necessary to achieve the person’s purpose.
(3)(a) Whoever unlawfully harms any public servant or any other person with whose welfare he is interested shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Whoever threatens unlawful harm to any public servant or to any other person with whose welfare he is interested shall be guilty of a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.
This statute does not require that the intent or purpose of the threat be accomplished in order for the act to be considered corruption by threat. All that it requires is that there be a threat of unlawful harm. The attempt to corrupt is itself a violation of section 838.021; therefore, there can be no lesser included offense of attempted corruption by threat.
Accordingly, we reverse and remand with directions to discharge the appellant.
It is so ordered. SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND and McDONALD, JJ., concur.
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State v. Sykes, 434 So. 2d 325 (Fla. 1983)…ecause the verdict was attempted theft. Attempt is part of section 812.-014, Florida Statutes (1977), the theft statute. A conviction of attempted theft is a conviction, and not an acquittal, of the crime itself. I would recede from Pagano v. State, 387 So. 2d 349 (Fla.1980), adopt the holding of Edwards v. State, 223 So. 2d 746 (Fla. 3d DCA 1969), apply McIntyre v. State, 380 So. 2d 1064 (Fla. 2d DCA 1980), to the facts of this case, and endorse the sound reasoning of Judge Larry Smith in his opinion in this…1 / 3
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Achin v. State, 436 So. 2d 30 (Fla. 1982)…nvicted of a nonexistent lesser included offense, where defense counsel requested that the jury instruction for the nonexistent offense be given. We find conflict with our decisions in Adams v. Murphy, 394 So. 2d 411 (Fla.1981), and Pagano v. State, 387 So. 2d 349 (Fla. 1980).1 We hold that one may never be convicted of a nonexistent crime and remand for a new trial, finding that defense counsel invited the error. The state charged petitioner with extortion under section 836.05, Florida Statutes (1977).2 In…1 / 2
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State v. Slaughter, 574 So. 2d 218 (Fla. 1st DCA 1991)…er, these provisions evince legislative intent to protect public servants from coercion or unlawful influence in the performance of a discretionary public duty. See Bragg v. State, 475 So. 2d 1255 (Fla. 5th DCA 1985). See generally Pangano v. State, 387 So. 2d 349, 350 (Fla.1980). In construing the statutory provision here under review, the fifth district implicitly found that the statute properly related the proscribed threats to the performance of a public duty when it stated: “The elements of the crime req…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- P. C. Lissenden Co., Inc. v. Bd. OF Cnty. Comm'rs OF Palm Beach Cnty., 116 So. 2d 632 (Fla. 1959)
- Milazzo v. State, 377 So. 2d 1161 (Fla. 1979)