JAMES L. SPONHEIM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Conviction for attempted extortion reversed because attempted extortion is not a crime under Florida law, but defendant may be retried for extortion itself without double jeopardy bar.
Attempted extortion is a nonexistent crime in Florida, and while a conviction for it must be reversed, the defendant may be retried for the substantive offense of extortion without violating double jeopardy.
[1] Attempted extortion is not a cognizable offense under Florida law because attempt is subsumed within the statutory definition of extortion, but conviction of such a nonex…
Previewing 1 of 1 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“Attempted extortion is a nonexistent crime, though an attempt is embraced within the crime of extortion as defined by section 836.05, Florida Statutes (1981).”
Court explaining why the conviction must be reversed despite the substance being covered by extortion law.
The state charged appellant with kidnapping and extortion with a firearm. The trial judge indicated he would charge the jury on extortion and attempte…
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CAMPBELL, Judge.
The state charged appellant in a two-count information with kidnapping and extortion with a firearm. At the charge conference the trial judge indicated that he would charge on extortion and attempted extortion. Defense counsel did not object. The jury acquitted appellant of the kidnapping charge and found him guilty of attempted extortion.
Attempted extortion is a nonexistent crime, though an attempt is embraced within the crime of extortion as defined by section 836.05, Florida Statutes (1981). We, therefore, reverse the conviction for attempted extortion. Appellant, however, is not entitled to discharge but may be retried for the offense of extortion. Achin v. State, No. 59,840 (Fla. Jan. 21, 1982); Jordan v. State, 415 So. 2d 1161 (Fla. 2d DCA1982). Even though in Achin the defendant had requested the instruction on attempted extortion and thus invited the error, we find that to be an insufficient distinction from the case sub judice where defense counsel remained silent in the face of the court’s announcement that it would charge on attempted extortion. Our supreme court in Achin appears to premise its holding not so much on the fact that defense counsel invited the error but “because defendant was convicted of a crime which, although technically nonexistent, was in all elements equal to the main offense,” and, therefore, “the double jeopardy provision of the fifth amendment does not bar defendant’s reprosecution.” Achin v. State, No. 59,840, slip op. at 4 (Fla. Jan. 21, 1982).
We, therefore, REVERSE and REMAND for retrial.
OTT, C. J., and SCHOONOVER, J., concur.