TIMOTHY JEROME DAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Day was convicted of RICO violations based on committing a series of armed robberies of convenience stores over one month. The court reversed his RICO conviction, holding that a lone actor who commits multiple crimes cannot constitute an 'enterprise' under Florida RICO law absent evidence of a separate, identifiable business entity.
A lone actor who commits multiple crimes cannot be considered an 'enterprise' under Florida RICO law. While a sole proprietor of a legitimate business may be an enterprise for RICO purposes, a true lone actor engaging only in criminal acts does not constitute a separate and identifiable entity required for RICO prosecution.
[1] A lone individual acting alone does not constitute an "enterprise" for purposes of the Florida RICO Act.
[2] To qualify as an "enterprise" under the Florida RICO Act, there must be a separate and identifiable entity through which criminal activity is conducted.
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Join FLexlaw to unlock all legal intelligence“There must, however, be a separate and identifiable entity through which criminal activity is conducted.”
Establishes the core requirement for RICO enterprise liability—a distinct entity beyond the individual defendant
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Join FLexlaw to unlock all legal intelligenceDay robbed or attempted to rob fourteen convenience stores during a one-month period. The state presented no evidence that Day acted in concert with a…
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SCHEB, Acting Chief Judge.
The defendant, Timothy Day, appeals his conviction of racketeering under the Florida RICO (Racketeer Influenced and Corrupt Organization Act) under section 895.-03(3), Florida Statutes (1985), and the sentences imposed for his convictions of robbery with a firearm, robbery with a deadly weapon, and attempted robbery with a deadly weapon. The charging documents alleged and the evidence at trial disclosed that Day robbed or attempted to rob fourteen convenience stores during one month. The information alleged that Day himself was an “enterprise” for RICO purposes. Day argues that a lone robber acting by himself does not constitute an “enterprise” as defined in section 895.02(3), Florida Statutes (1985). We agree.
The state did not present any evidence to show that Day acted in concert with another person, organization, or entity. This situation is similar to State v. Smith, 532 So. 2d 1112 (Fla. 2d DCA 1988). In Smith, this court upheld the dismissal of a RICO count against a lone actor who committed various illegal acts including armed robbery, assault, and battery. See State v. Nishi, 521 So. 2d 252 (Fla. 3d DCA 1988)(dismissal of RICO charge affirmed where defendant had acted alone in committing several counts of armed robbery). It may be that in some instances a lone actor can be considered an enterprise for RICO purposes when the business is distinct from the individual. There must, however, be a separate and identifiable entity through which criminal activity is conducted. See State v. Bowen, 413 So. 2d 798 (Fla. 1st DCA 1982), review denied, 424 So. 2d 760 (Fla.1983) (RICO conviction upheld where defendant was the sole proprietor of a warehouse business, an enterprise, out of which he illicitly bought and sold gold and silver).
The State urges that we reject Nishi and follow Bowen. This argument portrays the two cases as being diametrically opposed. We think the two cases are reconcilable because they address different factual situations: Nishi concerns the true lone actor, while Bowen concerns a sole proprietor of a warehouse business, an enterprise, out of which he illicitly bought and sold gold and silver. Here, Day’s situation is identical to the defendants’ in Nishi and Smith. Like them, he acted alone in a series of armed robberies. Therefore, we reverse his conviction on the RICO count, vacate his sentence, and direct that the scoresheet points for that offense be removed from his guidelines scoresheet.
Day also complains about other aspects of his sentencing including the consecutive life terms imposed when the recommended guidelines sentence was life with a mandatory minimum, as well as the manner in which his sentence was imposed, and the reasons given for the departure. We need not reach these issues because due to our decision on the RICO conviction, the entire sentencing process must be redone.
Reversed and remanded for proceedings consistent with this opinion.
SCHOONOVER and HALL, JJ., concur.
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State v. Clements, 668 So. 2d 980 (Fla. 1996)…oper where a defendant dies pending resolution of his or her appeal. See Carstens v. State, 638 So. 2d 630 (Fla. 4th DCA 1994); Jackson v. State, 559 So. 2d 320 (Fla. 3d DCA 1990); Kearns v. State, 536 So. 2d 1187 (Fla. 5th DCA 1989); D.R. v. State, 541 So. 2d 1202 (Fla. 2d DCA 1988); Parker v. State, 530 So. 2d 1084 (Fla. 3d DCA 1988); Cruz v. State, 137 So. 2d 254 (Fla. 2d DCA 1962).…
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Wilson v. State, 596 So. 2d 775 (Fla. 1st DCA 1992)…ithout some sort of identifiable legal or de facto entity which stands apart from the associating person, it cannot be said that an “association” has occurred.6 Therefore, we distinguish Bowen from the instant case, as did the court in Day v. State, 541 So. 2d 1202 (Fla.2d 1988), rev. denied, 545 So. 2d 869 (Fla.1989), which reversed a conviction under RICO where a single individual was the associating defendant as well as the enterprise. With reference to Bowen, the Day court stated: It may be that in some i…
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Masonoff v. State, 546 So. 2d 72 (Fla. 2d DCA 1989)…or associate with himself, as an enterprise, for purposes of RICO. This court has followed the Niski analysis in two cases involving robbery. State v. Smith, 532 So. 2d 1112 (Fla. 2d DCA 1988), review denied, 542 So. 2d 990 (Fla.1989); Day v. State, 541 So. 2d 1202 (Fla. 2d DCA 1988). Arguably, the robberies involved in Ni-ski and our earlier cases are distinguishable from the issuance of these worthless checks because the name of the sole proprietorship on the checks may have misled the payee and made it eas…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Bowen, 413 So. 2d 798 (Fla. 1st DCA 1982)
- State v. Nishi, 521 So. 2d 252 (Fla. 3d DCA 1988)
- Bester v. The Pub. Health Tr. OF Dade Cnty., 532 So. 2d 1112 (Fla. 3d DCA 1988)