STEPHEN C. ACHIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The defendant was convicted of attempted extortion, a crime that does not exist under Florida law. The court affirmed the conviction despite the non-existent offense, holding that when a defendant deliberately invites a legally impossible instruction and fails to object, he cannot later complain of the error.
Although attempted extortion does not exist as a crime under Florida law, the error is not invariably fundamental when deliberately invited by the defendant and not objected to at trial. A defendant who both induces and promotes such an error cannot later complain about its result.
[1] A defendant may not complain on appeal about a jury instruction that was invited by the defense and not objected to at trial.
[2] A defendant's affirmative request for a jury instruction on a nonexistent crime, coupled with a failure to object to its inclusion, precludes appellate review of the erro…
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“Without laborious analysis of the statutory language we find it abundantly clear that money need not actually be extracted from the victim and that an attempt to extract it is clearly within the language and scope of the statute defining the crime of extortion.”
Establishes that attempted extortion is already encompassed within the statutory definition of extortion itself, so attempted extortion as a separate crime does not exist.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe defendant was charged with extortion. At the charge conference, the defense attorney suggested that attempted extortion be included as a lesser in…
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LETTS, Chief Judge.
The defendant invited a lesser included offense instruction of attempted extortion. Upon conviction thereof he now claims that he must go free because such a crime does not exist. We affirm.
We begin by agreeing that the crime of attempted extortion does not exist. Section 836.05 of the Florida Statutes (1977) reads:
836.05 Threats; extortion. — Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his will, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Without laborious analysis of the statutory language we find it abundantly clear that money need not actually be extracted from the victim and that an attempt to extract it is clearly within the language and scope of the statute defining the crime of extortion.
We are also aware that one normally cannot be convicted of a crime that does not exist Vogel v. State, 365 So. 2d 1079 (Fla. 1st DCA 1979). However, we hold the error is not invariably fundamental and where the error is deliberately invited and the instruction not objected to, the defendant shall not be heard to complain about the result.
In the case at bar, the following colloquy took place at the charge conference. .
THE COURT: Do either of you have any special instructions to present to the Court? MR. SANDSTROM: [defense attorney] Well, it ended a little prompt. Do you have one in there that defines each of the words that are in here? THE COURT: I don’t know. I never had a case like this before. Are there any lesser offenses of this? MR. SANDSTROM: There is always attempt. THE COURT: Other than the attempt. I guess we better go in the office. This doesn’t have anything in here. (Thereupon, a short recess was taken.) MR. SCHAEFER: [State attorney] I would like, at least for the purpose of closing argument, that we know what the lesser includeds are. THE COURT: The only lesser would be attempted, as far as I know. No lessers have been requested? MR. SANDSTROM: Right. This representation by a most able defense attorney may not rise to the level of a demand for an instruction on a nonexistent criminal offense such as occurred in McIntyre v. State, 380 So. 2d 1064 (Fla. 2d DCA 1980), but it comes close. Moreover, when it is considered in conjunction with a failure to object when the instruction was given to the jury, we agree with the Second District that the defendant should not now be heard to complain about an error which he both induced and promoted. See McIntyre, supra. He did more, much more than just remain silent and we must again borrow Judge Schwartz’ language and remark that such “gotcha” maneuvers should not be allowed to succeed Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979).
AFFIRMED.
DOWNEY and ANSTEAD, JJ., concur.
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RAY v. State, 403 So. 2d 956 (Fla. 1981)…rt. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976). Contrary to the cases that Ray relies on, the district courts have also found that instructing on a crime not charged does not necessarily constitute reversible error. Achin v. State, 387 So. 2d 375 (Fla.4th DCA 1980); Wilson v. State, 383 So. 2d 670 (Fla.5th DCA 1980); Carter v. State, 380 [*961] So. 2d 541 (Fla.5th DCA 1980); Odom v. State, 375 So. 2d 1079 (Fla.1st DCA 1979), cert. denied, 386 So. 2d 640 (Fla.1980); Smith v. State, 375 So. 2d…
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Achin v. State, 436 So. 2d 30 (Fla. 1982)…OVERTON, Justice. This is a petition to review the decision of the Fourth District Court of Appeal, reported at 387 So. 2d 375. The issue concerns whether a defendant may be convicted 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…
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Heimer v. Travelers Ins. Co., 400 So. 2d 771 (Fla. 3d DCA 1981)…ipment, Inc., 394 So. 2d 193 (Fla. 3d DCA 1981); State v. Anders, 388 So. 2d 380 (Fla. 3d DCA 1980); State v. Belien, 379 So. 2d 446 (Fla. 3d DCA 1980); Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979). See also Achin v. State, 387 So. 2d 375 (Fla. 4th DCA 1980); In re Estate of Osborn, 383 So. 2d 1107 (Fla. 4th DCA 1980). In the words of this court, speaking through Judge Schwartz: “In earlier times, the rule we apply in this case was said to reflect the feeling that a party may not ‘m…
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- Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979)
- Vogel v. State, 365 So. 2d 1079 (Fla. 1st DCA 1979)
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