STATE OF FLORIDA, PETITIONER,
v.
TOM ALEX O'HARA, RESPONDENT
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The Florida Supreme Court held that a defendant can be convicted of both extortion and grand theft for taking a single sum of money, provided neither crime is a necessarily lesser included offense of the other. The court reversed the district court's decision that had vacated the theft conviction.
A defendant can be convicted of both extortion and grand theft for taking a single sum of money if neither crime is a necessarily lesser included offense of the other. Since extortion can be committed without theft and theft can be committed without extortion, both convictions and sentences are permissible under the Baker test.
[1] A defendant may be convicted of two crimes arising from the same episode if neither crime is a necessarily lesser included offense of the other.
[2] Extortion and second-degree grand theft are not necessarily lesser included offenses of each other.
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Join FLexlaw to unlock all legal intelligence“One cannot be convicted of two crimes for the taking of only one sum of money, be it through an extortion method as here, or a robbery method.”
The district court's erroneous holding that was overturned by the Supreme Court
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Join FLexlaw to unlock all legal intelligenceO'Hara and an accomplice threatened a victim with arrest unless she gave them money. The victim, acting with police involvement, turned over money to …
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EHRLICH, Justice.
Once again we are called upon to resolve a problem of multiple crimes arising out of a single episode. This case is in conflict with State v. Baker, 452 So. 2d 927 (Fla. 1984), and we therefore have jurisdiction. Art. V, § 3(b)(8), Fla. Const. O’Hara was convicted of, inter alia, extortion1 and second-degree grand theft2 for threatening to have his victim arrested if she did not give him money. O’Hara and an accomplice were arrested after the victim turned over money provided by police who had been called into the case. The district court reversed the theft conviction, reasoning that “[o]ne cannot be convicted of two crimes for the taking of only one sum of money, be it through an extortion method as here, or a robbery method.” O’Hara v. State, 448 So. 2d 524, 524 (Fla. 5th DCA 1984). Unfortunately for Mr. O’Hara, one can be convicted of two crimes for taking only one sum of money, provided that neither crime is a necessarily lesser included offense of the other. State v. Baker. As Judge Cowart reasoned in his dissent from the decision below, 448 So. 2d at 526, one may commit extortion without thieving, and one may commit theft without extorting. Neither crime is a necessarily lesser included offense of the other. The Baker test is satisfied, and both convictions and sentences must stand. § 775.021(4), Fla.Stat. (1981).'
Accordingly, we quash the decision of the district court. It is so ordered.
BOYD, C.J., and OVERTON, MCDONALD and SHAW, JJ., concur. ADKINS, J., dissents.
. § 836.05, Fla.Stat. (1981):
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
. § 812.014(1), Fla.Stat. (1981):
Theft. — (1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent:
(a) To deprive the other person of a right to the property or a benefit therefrom.
(b) To appropriate the property to his own use or to the use of any person not entitled thereto.
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Collins v. State, 489 So. 2d 188 (Fla. 5th DCA 1986)…e extent that the majority opinion relies on waivers of this double jeopardy violation, implied from the defendant’s inaction, it is in direct conflict with State v. Johnson, supra. .See O’Hara v. State, 448 So. 2d 524 (Fla. 5th DCA 1984), quashed, 478 So. 2d 24 (Fla.1985). See also W.J.W. v. State, 446 So. 2d 248 (Fla. 5th DCA 1984; Savino v. State, 447 So. 2d 411 (Fla. 5th DCA 1984); Hedges v. State, 448 So. 2d 5 (Fla. 5th DCA 1984); Madry v. State, 448 So. 2d 8 (Fla. 5th DCA 1984); Holmes v. State, 453 S…1 / 2
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Helmick v. State, 569 So. 2d 869 (Fla. 2d DCA 1990)…r refrain from doing any act against his will.” § 836.05, Fla.Stat. (1987). Nothing indicates that the legislature did not intend these offenses to be separate and distinct. See Carawan v. State, 515 So. 2d 161 (Fla. 1987); see also State v. O’Hara, 478 So. 2d 24 (Fla.1985). The convictions for aggravated assault and extortion are therefore affirmed. The enhancement in degree of felony of the extortion and false imprisonment offenses for the use of a firearm is another matter. The state did not charge in th…
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Bing v. State, 492 So. 2d 833 (Fla. 5th DCA 1986)…and not the factual events upon which the charges are based) that substantive difference is indicated by the fact that a defendant can commit one of two statutory offenses without necessarily committing the other offense. See, e.g., State v. O'Hara, 478 So. 2d 24 (Fla.1985). . See, e.g., Burke v. State, 475 So. 2d 252 (Fla. 5th DCA 1985), review denied, 484 So. 2d 10 (1986). . Otherwise either the legislative branch or the executive branch, or both, by manipulating the form of statutes or the form of charg…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Baker, 452 So. 2d 927 (Fla. 1984)
- O'Hara v. State, 448 So. 2d 524 (Fla. 5th DCA 1984)