Achin v. State, 79-1060
| Decision Date | 11 June 1980 |
| Docket Number | No. 79-1060,79-1060 |
| Citation | 387 So.2d 375 |
| Parties | Stephen C. ACHIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Steve Lange of Sandstrom & Haddad, Fort Lauderdale, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
The defendant invited a lesser included offense instruction of attempted extortion. Upon conviction thereof he now claims that he must go free because such a crime does not exist. We affirm.
We begin by agreeing that the crime of attempted extortion does not exist. Section 836.05 of the Florida Statutes (1977) reads:
836.05 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.
Without laborious analysis of the statutory language we find it abundantly clear that money need not actually be extracted from the victim and that an attempt to extract it is clearly within the language and scope of the statute defining the crime of extortion.
We are also aware that one normally cannot be convicted of a crime that does not exist Vogel v. State, 365 So.2d 1079 (Fla. 1st DCA 1979). However, we hold the error is not invariably fundamental and where the error is deliberately invited and the instruction not objected to, the defendant shall not be heard to complain about the result.
In the case at bar, the following colloquy took place at the charge conference.
Are there any lesser offenses of this?
I guess we better go in the office. This doesn't have anything in here.
(Thereupon, a short recess was taken.)
To continue reading
Request your trial
-
Ray v. State
...courts have also found that instructing on a crime not charged does not necessarily constitute reversible error. Achin v. State, 387 So.2d 375 (Fla.4th DCA 1980); Wilson v. State, 383 So.2d 670 (Fla.5th DCA 1980); Carter v. State, 380 So.2d 541 (Fla.5th DCA 1980); Odom v. State, 375 So.2d 1......
-
Sentinel Communications Co. v. Smith
... ... judicial forum in a case involving private civil litigation to which the general public--the State--is not a party ... The case here is a usual domestic relations case. Court ... ...
-
Heimer v. Travelers Ins. Co.
...379 So.2d 446 (Fla. 3d DCA 1980); Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979). See also Achin v. State, 387 So.2d 375 (Fla. 4th DCA 1980); In re Estate of Osborn, 383 So.2d 1107 (Fla. 4th DCA 1980). In the words of this court, speaking through Judge Schwartz: "In e......
-
Sykes v. State
...grand theft, no prejudice could result from construing the verdict as a finding of guilt for grand theft. See also Achin v. State, 387 So.2d 375 (Fla. 4th DCA 1980). Here there was no defense request for the "attempt" charge. Otherwise, the circumstances presented here are no different than......