SCOTT KEITH HELMICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Scott Helmick was convicted of extortion with a firearm, aggravated assault with a firearm, false imprisonment with a firearm, and battery following an incident where he forced a salesperson into a bathroom at gunpoint and demanded she remove her clothes. The appellate court affirmed the convictions for aggravated assault and extortion but reversed the sentence enhancements for extortion and false imprisonment because the information did not charge the use of a firearm for those counts.
The convictions for aggravated assault and extortion are affirmed because each offense requires distinct elements not required by the other, making them separate crimes under double jeopardy doctrine. However, the sentence enhancements for extortion and false imprisonment based on firearm use are reversed because the information failed to charge firearm use for those specific offenses, and it is fundamental error to enhance sentences based on allegations not charged in the information.
[1] Separate convictions for aggravated assault and extortion are permissible when each offense requires an element not present in the other.
[2] Felony convictions cannot be enhanced for the use of a firearm if the charging information does not allege the use of a firearm in relation to those specific offenses.
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“aggravated assault and extortion each require an element that the other does not. Aggravated assault requires an "act which creates a well-founded fear in such other person that such violence is imminent." Extortion requires an intent "to extort money or any pecuniary advantage" or "to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his will."”
Establishes that aggravated assault and extortion are separate, distinct offenses with non-overlapping elements, supporting double jeopardy analysis
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Join FLexlaw to unlock all legal intelligenceOn February 14, 1986, salesperson Susan Garcia visited Helmick's auto repair service on business. Helmick grabbed her by the arm, forced her at gunpoi…
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PATTERSON, Judge.
The appellant challenges his convictions and sentences for extortion with a firearm, aggravated assault with a firearm, false imprisonment with a firearm, and battery. We affirm in part and reverse in part.
On February 14, 1986, Susan Garcia, a salesperson for Radiant Oil Company, made a business call at the Helmicks’ auto repair service. She greeted the appellant and a normal conversation about Radiant’s products ensued. Garcia went outside to her truck, obtained catalogs and price sheets, and returned inside, where she placed them on a counter. As she turned to leave, the appellant grabbed her by the arm and forced her at gunpoint into a small bathroom. He then demanded, at gun point, that she remove her clothes. She refused. The appellant put his hand on Garcia’s chest and said he would kill her if she did not. Garcia slapped him and said, “I can’t, I’m married.” The appellant lowered the gun and began to cry, whereupon Garcia fled.
In a four-count information the state charged the appellant with aggravated assault with a firearm, kidnapping, battery, and extortion. After trial the jury returned guilty verdicts for aggravated assault with a firearm, false imprisonment with a firearm (the lesser offense of kidnapping), battery, and extortion with a firearm. The trial court adjudicated the appellant guilty of all offenses. The court enhanced the offenses of extortion and false imprisonment to first and second degree felonies, respectively, pursuant to section 775.087, Florida Statutes (1987).1 Based on the enhanced offenses the appellant was sentenced within the guidelines.
The appellant’s first assertion is that the offenses of aggravated assault and extortion are so intertwined that he cannot be convicted of both on double jeopardy grounds. However, aggravated assault and extortion each require an element that the other does not. Aggravated assault requires an “act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011, Fla. Stat. (1987). Extortion requires an intent “to extort money or any pecuniary advantage” or “to compel the person so threatened, or any other person, to do any act or 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 the information that the appellant committed either of these offenses with a firearm. It is fundamental error to enhance convictions for the use of a firearm when the information does not charge the use of a firearm. Cox v. State, 530 So. 2d 464 (Fla. 5th DCA 1988). Although the state alleged the use of a firearm in another count of the information, that count cannot serve to support the enhancement. State v. McKinnon, 540 So. 2d 111 (Fla.1989).
All sentences imposed upon the appellant, except the sentence on the misdemeanor battery charge, are vacated and this cause is remanded for resentencing under a recalculated scoresheet.
Affirmed in part, reversed in part.
CAMPBELL, A.C.J., and THREADGILL, J., concur. . 775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.—
(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony.
(b) In the case of a felony of the second degree, to a felony of the first degree.
(c) In the case of a felony of the third degree, to a felony of the second degree.
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Citator
Cited By (12 total)
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Leath v. State, 805 So. 2d 956 (Fla. 2d DCA 2001)…sion of a firearm to apply pursuant to section 775.087(2), Florida Statutes (1993), the State must allege in the information that the defendant possessed a firearm. Peck v. State, 425 So. 2d 664, 665 (Fla. 2d DCA 1983). As noted in Helmick v. State, 569 So. 2d 869, 870 (Fla. 2d DCA 1990), “[i]t is fundamental error to enhance convictions for the use of a firearm when the information does not charge the use of a firearm.” Moreover, a conviction on a charge not contained in the information is a due process viol…
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Mesa v. State, 632 So. 2d 1094 (Fla. 3d DCA 1994)…t. (1991). . See, e.g., Gibbs v. State, 623 So. 2d 551 (Fla. 4th DCA), rev. denied., 630 So. 2d 1099 (Fla.1993) (No. 82,577); Spencer v. State, 588 So. 2d 71 (Fla. 3d DCA 1991); Cerrato v. State, 576 So. 2d 351 (Fla. 3d DCA 1991); Helmick v. State, 569 So. 2d 869 (Fla. 2d DCA 1990); Cox v. State, 530 So. 2d 464 (Fla. 5th DCA 1988).…
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Gibbs v. State, 623 So. 2d 551 (Fla. 4th DCA 1993)…. Although the state initially counters that appellant waived this issue by failure to raise it below, the enhancement of convictions for use of a firearm when the information does not charge use of a firearm is fundamental error. Helmick v. State, 569 So. 2d 869, 870 (Fla. 2d DCA1990). Moreover, the state cannot use the allegation of use of a firearm in another count of the information to support an enhancement. Id.; State v. McKinnon, 540 So. 2d 111, 113 (Fla.1989). Accordingly, we reverse the conviction f…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Webster Fleming McKINNON, 540 So. 2d 111 (Fla. 1989)
- COX v. State, 530 So. 2d 464 (Fla. 5th DCA 1988)
- State v. O'Hara, 478 So. 2d 24 (Fla. 1985)