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State v. Russo

District Court of Appeal of Florida, Fourth District
Oct 1, 1986
493 So. 2d 504 (Fla. Dist. Ct. App. 1986)

Summary

In Russo, the court held that the "two incidents" requirement is not satisfied when the defendant is charged with two offenses which arose out of the same transaction. Russo at 505.

Summary of this case from Watts v. State

Opinion

No. 85-1694.

August 20, 1986. Rehearing Denied October 1, 1986.

Appeal from the Circuit Court, St. Lucie County, Rupert J. Smith, J.

Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellant.

Robert A. Leventhal, Orlando, for appellee Joseph Russo.

Jeffrey H. Garland, Port St. Lucie, for appellee Caricofe.

Lee E. Muschott, Fort Pierce, for appellee James Thomas Curry.

Harrison T. Slaughter, Jr., Orlando, for appellee Leland Curry.

Richard S. Rhodes, Orlando, for appellee Marvin Otto Carlsen.


This is an appeal from an order dismissing Count I of the indictment of five defendants which charged them with violating the Florida Racketeer Influenced and Corrupt Organization Act (RICO), Section 895.03(3), Florida Statutes (1983). The indictment charged the defendants with the substantive offense of trafficking in cannabis and conspiracy to so traffic. The trial court ruled that the indictment was legally insufficient because it charged the defendants with the commission of only one offense whereas section 895.02(4) requires "two incidents" of racketeering conduct. That section provides:

"Pattern of racketeering activity" means engaging in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct.

The main issue on appeal is whether the indictment, which charged the defendants with the act of trafficking in cannabis and the conspiracy to so traffic, satisfied the requirement that there be "two incidents" or predicate acts of racketeering conduct.

The state argues that the trial court erred in determining that the offenses constituted only one incident and asserts that acts which are part of the same transaction can still qualify as distinct incidents if each offense requires proof of an element that the other does not. The state refers to federal case law which allows for prosecution under federal RICO if the state charges the defendant with any of the substantive offenses included within the definition of racketeering and also charges the defendant with conspiracy to commit that offense.

While the Florida RICO statute is similar to the federal RICO statute it contains one important difference. Florida RICO refers to "two incidents" of racketeering conduct whereas federal RICO requires "two predicate acts." We believe that the legislature intended to narrow the application of the Florida RICO statute by this language. This interpretation is in line with the Florida Supreme Court's determination that the proper target of RICO prosecutions will be the career criminal. See Bowden v. State, 402 So.2d 1173 (Fla. 1981). Thus, we affirm the dismissal of the defective indictment.

DOWNEY, ANSTEAD and DELL, JJ., concur.


Summaries of

State v. Russo

District Court of Appeal of Florida, Fourth District
Oct 1, 1986
493 So. 2d 504 (Fla. Dist. Ct. App. 1986)

In Russo, the court held that the "two incidents" requirement is not satisfied when the defendant is charged with two offenses which arose out of the same transaction. Russo at 505.

Summary of this case from Watts v. State

In Russo, our colleagues held that an indictment charging conspiracy to traffic in cannabis and trafficking in the same cannabis was legally insufficient to charge "two incidents" of racketeering conduct, as required by section 895.02(4), Florida Statutes (1987), to constitute a "pattern of racketeering activity."

Summary of this case from Crews v. State
Case details for

State v. Russo

Case Details

Full title:STATE OF FLORIDA, APPELLANT, v. JOSEPH RUSSO, LELAND CURRY, JAMES THOMAS…

Court:District Court of Appeal of Florida, Fourth District

Date published: Oct 1, 1986

Citations

493 So. 2d 504 (Fla. Dist. Ct. App. 1986)

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