         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                   NOT FINAL UNTIL TIME EXPIRES TO
                                                   FILE MOTION FOR REHEARING AND
                                                   DISPOSITION THEREOF IF FILED


ANTHONY DOYLE,

              Appellant,

 v.                                                       Case No. 5D17-686

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed February 23, 2018

Appeal from the Circuit Court
for Seminole County,
Debra S. Nelson, Judge.

James S. Purdy, Public Defender,
and    Glendon George Gordon, Jr,
Assistant Public Defender, Daytona
Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kaylee D. Tatman,
Assistant Attorney General, Daytona
Beach, for Appellee.

PER CURIAM.

       Anthony Doyle appeals his convictions and sentences for extortion under section

836.05, Florida Statutes (2015), and written threats to kill or do bodily injury under section

836.10, Florida Statutes (2015), arguing that the dual convictions violate double jeopardy.

We agree and therefore reverse and remand for resentencing.
       The evidence adduced at trial was that Doyle sent a handwritten letter to his pastor,

threatening “a slow and painful death” for the pastor’s children and their families if the

pastor failed to deliver $15,000 to Doyle or if he notified the police. Doyle claimed that he

also received a letter, which he showed to the pastor, stating that the pastor had a

package that Doyle was to pick up and take to the alleged extorters, or they would kill

Doyle’s parents and wife.

       Doyle became the subject of the police investigation because the two letters

contained the same handwriting and matched the handwriting in a written statement

Doyle had provided the police in an unrelated case. 1 The jury returned a guilty verdict on

both charges. Doyle was sentenced to five years’ incarceration on each charge, with each

sentence to run concurrently, followed by ten years of probation. The sole issue on appeal

is whether double jeopardy precluded convictions on both charges.

       Section 836.05, “Threats; extortion,” provides:

                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 or her 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.

§ 836.05, Fla. Stat. (2015).

       Section 836.10, “Written threats to kill or do bodily injury; punishment,” provides:



       1   The handwriting also matched writing samples Doyle provided in the instant case.


                                                2
              Any person who writes or composes and also sends or
              procures the sending of any letter, inscribed communication,
              or electronic communication, whether such letter or
              communication be signed or anonymous, to any person,
              containing a threat to kill or to do bodily injury to the person to
              whom such letter or communication is sent, or a threat to kill
              or do bodily injury to any member of the family of the person
              to whom such letter or communication is sent commits a
              felony of the second degree, punishable as provided in s.
              775.082, s. 775.083, or s. 775.084.

§ 836.10, Fla. Stat. (2015).

       Doyle argues that the elements of the two offenses are inseparable and that a

conviction for written threats under section 836.10 does not include any additional

elements not included for an extortion conviction under section 836.05. Alternatively, he

suggests that even if the crimes contain different elements, a conviction for written threats

under section 836.10 is necessarily subsumed by an extortion conviction under section

836.05. The State responds that each offense contains a different element; extortion

includes malice, intent, and several different types of threats, while written threats to kill

or do bodily harm contains the elements of sending the communication as well as that the

threat could be to a family member. 2

       “A double jeopardy claim based upon undisputed facts presents a pure question

of law and is reviewed de novo.” State v. Akins, 69 So. 3d 261, 268 (Fla. 2011) (quoting

Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006)). “The prevailing standard for



       2 The State also argues that Roughton v. State, 185 So. 3d 1207 (Fla. 2016),
controls in this case and that dual convictions under sections 836.05 and 836.10 do not
violate double jeopardy based on the alternative conduct proscribed by each statute. This
argument lacks merit. In Roughton, the court explicitly found that both lewd or lascivious
molestation and sexual battery contain a different element that the other does not, based
on the alternative conduct proscribed by each statute. 185 So. 3d at 1210. As explained
below, however, section 836.10 does not contain any element not found in section
836.05.


                                              3
                                                          Written Threats to Kill or Do
 Extortion—Section 836.05
                                                          Bodily Injury—Section 836.10
                                                          (1) a person writes or composes a
 (1) the defendant made a written, printed, or verbal     communication containing a threat,
 communication of a threat to another                     and sends or procures sending of
                                                          that communication,
 (2) in the communication, the defendant threatened to:
     (a) accuse another of a crime;                       (2) threatening to kill or do bodily
     (b) injure another person;                           injury
     (c) injure another’s property or reputation;
     (d) expose another person to disgrace;               (3) to the recipient of the threat or a
     (e) expose a secret; or                              member of his or her family.
     (f) impute deformity or lack of chastity

 (3) the threat was made maliciously                      n/a


 (4) the threat was made with the intent to:
     (a) extort money or pecuniary advantage
                                                          n/a
     (b) compel a person to do any act or refrain
 from doing an act against his/her will.


       Thus, extortion under section 836.05 may be committed by issuing a written threat

to commit bodily harm on another, which encompasses all of the required elements of

section 836.10—a written threat to kill or do bodily injury on the person threatened or a

family member. The elements of extortion differ in that there must be malice as well as

an intent to extort money or compel a person into action or inaction. But a conviction for

written threats to kill or do bodily injury contains no further requirements.

       The State’s contention that the elements are different because the written threat

under section 836.10 may be directed toward a family member is unpersuasive. Under

the second element of extortion (as listed above), extortion may be committed by

threatening to injure another person. See § 836.05, Fla. Stat. This is broad enough to

encompass the third element required for written threats to kill or do bodily injury that the

threat of injury is to the person receiving the threat or a member of his or her family. See

id. § 836.10. A conviction for written threats under section 836.10 does not have any


                                                5
                                                          Written Threats to Kill or Do
 Extortion—Section 836.05
                                                          Bodily Injury—Section 836.10
                                                          (1) a person writes or composes a
 (1) the defendant made a written, printed, or verbal     communication containing a threat,
 communication of a threat to another                     and sends or procures sending of
                                                          that communication,
 (2) in the communication, the defendant threatened to:
     (a) accuse another of a crime;                       (2) threatening to kill or do bodily
     (b) injure another person;                           injury
     (c) injure another’s property or reputation;
     (d) expose another person to disgrace;               (3) to the recipient of the threat or a
     (e) expose a secret; or                              member of his or her family.
     (f) impute deformity or lack of chastity

 (3) the threat was made maliciously                      n/a


 (4) the threat was made with the intent to:
     (a) extort money or pecuniary advantage
                                                          n/a
     (b) compel a person to do any act or refrain
 from doing an act against his/her will.


       Thus, extortion under section 836.05 may be committed by issuing a written threat

to commit bodily harm on another, which encompasses all of the required elements of

section 836.10—a written threat to kill or do bodily injury on the person threatened or a

family member. The elements of extortion differ in that there must be malice as well as

an intent to extort money or compel a person into action or inaction. But a conviction for

written threats to kill or do bodily injury contains no further requirements.

       The State’s contention that the elements are different because the written threat

under section 836.10 may be directed toward a family member is unpersuasive. Under

the second element of extortion (as listed above), extortion may be committed by

threatening to injure another person. See § 836.05, Fla. Stat. This is broad enough to

encompass the third element required for written threats to kill or do bodily injury that the

threat of injury is to the person receiving the threat or a member of his or her family. See

id. § 836.10. A conviction for written threats under section 836.10 does not have any


                                                5
additional elements not contained in section 836.05. Therefore, dual convictions on both

charges, arising out of the same criminal transaction, violate double jeopardy.

      REVERSED AND REMANDED FOR RESENTENCING.

COHEN, C.J., SAWAYA and EDWARDS, JJ., concur.




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