HERBERT BERNARD HOLLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Herbert Bernard Holley was convicted of one RICO count and twelve robbery counts stemming from a series of convenience store and fast food restaurant robberies in early 1987. The appellate court vacated the RICO conviction because a sole individual cannot constitute an enterprise under Florida's RICO statute and reversed the robbery convictions due to improper denial of the defendant's motion for severance.
A single person acting alone cannot be an enterprise for RICO purposes without proof that he used a business entity as a conduit for criminal activity. The trial court erred in denying the motion for severance where counts involve merely similar circumstances rather than proper joinder grounds.
[1] A single individual acting alone cannot constitute an enterprise for RICO purposes unless proof shows the individual used a business entity as a conduit for criminal acti…
[2] Denial of a motion for severance is improper when the charged counts merely involve similar circumstances.
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“One person acting alone cannot be an enterprise for RICO purposes absent proof that he used a business entity as a conduit for criminal activity.”
Establishes the fundamental legal principle that defeats the RICO conviction on appeal.
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Join FLexlaw to unlock all legal intelligenceHolley was charged with robbery of multiple convenience stores and fast food restaurants during January and February 1987. He was tried by jury and co…
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SCHEB, Acting Chief Judge.
The state charged the defendant with robbery of a number of convenience stores and fast food restaurants during January and February 1987. He was tried by jury and convicted of one count of RICO (Racketeer Influenced and Corrupt Organization Act), section 895.03(3), Florida Statutes (1985), and twelve counts of robbery with a deadly weapon, violations of section 812.-13(2), Florida Statutes (1985). He appeals his judgments and sentences and raises several issues. We have examined each and find two points meritorious.
First, the defendant correctly points out that the trial court erred by denying his motion for judgment of acquittal as to the RICO charge. One person acting alone cannot be an enterprise for RICO purposes absent proof that he used a business entity as a conduit for criminal activity. Day v. State, 541 So. 2d 1202 (Fla. 2d DCA 1988), rev. denied, 545 So. 2d 869 (Fla.1989)(sole participant in series of armed robberies could not be an enterprise under RICO). Here the evidence disclosed that the defendant acted alone and did not use a business organization to commit the offenses for which he was charged. Therefore, we must vacate the RICO conviction.
Second, the defendant correctly argues that the trial court erred by denying his pretrial motion for severance of the robbery counts. It is improper to deny a defendant’s motion for severance where, as here, the counts merely involve similar circumstances. State v. Williams, 453 So. 2d 824, 825 (Fla.1984); Jackson v. State, 539 So. 2d 491 (Fla. 2d DCA), rev. denied, 545 So. 2d 1369 (Fla.1989); Wallis v. State, 548 So. 2d 808 (Fla. 5th DCA 1989); Fla.R. Crim.P. 3.152(a).
We find no merit in the argument regarding the identifications made by the victims of four of the robberies charged against the defendant. Finally, our disposition of the RICO charge and the severance issue renders moot the remaining issues concerning an alleged discovery violation and objections to the state’s closing argument.
Accordingly, we vacate the defendant’s conviction for RICO and discharge him from that count. We reverse the robbery convictions and remand for new trials on the twelve robbery charges.
HALL and PATTERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hempstead v. State, 980 So. 2d 1254 (Fla. 2d DCA 2008)…d. at 786. The First District stated that the offenses, which occurred over an eight-month period on different dates and involved separate victims, “were unrelated in the episodic sense and, therefore, joinder was improper.” Id. In Holley v. State, 564 So. 2d 595 (Fla. 2d DCA 1990), the defendant challenged a RICO conviction and twelve robbery with a deadly weapon convictions for robberies of convenience stores and fast food restaurants. This court vacated the RICO conviction because the defendant acted alon…
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State v. Jackson, 677 So. 2d 938 (Fla. 2d DCA 1996)…ev. dismissed, 553 So. 2d 1166 (Fla.1989). In order to satisfy the “enterprise” element of a RICO charge, the state must allege the defendant acted in concert with another person, organization or entity. Day, 541 So. 2d at 1203. See Holley v. State, 564 So. 2d 595 (Fla. 2d DCA 1990) (one person acting alone cannot be an enterprise for RICO purposes absent proof he used a business entity as a conduit for criminal activity). This court in Masonoff noted that the RICO statute’s definition of enterprise included…
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State v. Fudge, 645 So. 2d 23 (Fla. 2d DCA 1994)…ntial rights of the defendant were prejudiced thereby. The trial court properly granted the defendant’s motion for severance where the counts merely involved similar circumstances. State v. Williams, 453 So. 2d 824, 825 (Fla.1984); Holley v. State, 564 So. 2d 595 (Fla. 2d DCA 1990); Jackson v. State, 539 So. 2d 491 (Fla. 2d DCA), review denied, 545 So. 2d 1369 (Fla.1989); Wallis v. State, 548 So. 2d 808 (Fla. 5th DCA 1989). “It is improper to deny a defendant’s motion for severance where the counts merely in…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Williams, 453 So. 2d 824 (Fla. 1984)
- Wallis v. State, 548 So. 2d 808 (Fla. 5th DCA 1989)
- D.R. v. State, 541 So. 2d 1202 (Fla. 3d DCA 1988)
- DAY v. State, 541 So. 2d 1202 (Fla. 2d DCA 1988)
- Jackson v. State, 539 So. 2d 491 (Fla. 2d DCA 1989)