         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                             VICTOR CASTILLO,
                                 Appellant,

                                       v.

                            STATE OF FLORIDA,
                                 Appellee.

                                 No. 4D17-985

                             [September 5, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard Oftedal, Judge; L.T. Case No. 50-2007-CF-017817-
CXXX-MB.

   Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West
Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

   To convict appellant of the crime of racketeering, the state must prove, in
part, that appellant participated in a pattern of racketeering activity. A
pattern of racketeering activity is defined as engaging in at least two incidents
of racketeering conduct with the last incident having occurred within five
years of the first incident. § 895.02(4), Fla. Stat. (2007). In this case, the
only two acts that occurred within five years of each other occurred on the
very same day. We find that the two predicate acts committed on May 27,
2006—battery and possession of cocaine—are not two separate incidents for
the purposes of sustaining a conviction of racketeering. Thus, we reverse and
remand for the trial court to vacate appellant’s conviction for racketeering.

    Appellant was convicted of racketeering based on three predicate acts. The
first act, which occurred on July 9, 2000, was resisting an officer without
violence. The second and third acts both occurred on May 27, 2006. On May
27, 2006, appellant was initially arrested for battery and then found to be in
possession of cocaine.
   Appellant filed a direct appeal with this court, but counsel failed to raise
any argument as to the more than five-year gap between the 2000 and 2006
predicate acts. Castillo v. State, 170 So. 3d 112 (Fla. 4th DCA 2015).
Appellant then filed a petition for writ of habeas corpus based on ineffective
assistance of appellate counsel. Castillo v. State, 213 So. 3d 930 (Fla. 4th
DCA 2017). In his petition, appellant challenged only his conviction for
racketeering. He did not challenge his conviction for conspiracy to commit
racketeering. We found that appellate counsel was ineffective for failing to
argue that the two predicate incidents proven did not occur within five years
of one another and granted a new appeal only as to the racketeering
conviction. Id. at 932.

   Whether appellant’s two acts committed at the same time constitute
distinct predicate incidents under the racketeering statute is a question of
law subject to de novo review. Allen v. State, 82 So. 3d 118, 120 (Fla. 4th
DCA 2012).

   Appellant contends that two criminal offenses committed at the same time
cannot constitute two separate incidents of racketeering conduct. The state
acknowledges that it cannot sustain a racketeering conviction based on the
2000 incident, as it occurred more than five years before the next incident.
However, it maintains that the two 2006 offenses—battery and possession of
cocaine—are sufficiently unrelated so as to constitute two separate incidents
despite their temporal proximity to one another.

   A defendant may be convicted of racketeering when he is associated with
an enterprise and participates in that enterprise through a pattern of
racketeering activity. § 895.03(3), Fla. Stat. A “pattern of racketeering
activity” is defined as

      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.

§ 895.02(4), Fla. Stat.

   This court has previously addressed whether two or more criminal acts
committed at the same time constitute separate incidents of racketeering
conduct. In State v. Marks, 758 So. 2d 1131, 1138 (Fla. 4th DCA 2000), the

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defendant was alleged to have uttered four perjurious statements over the
course of a single deposition. We concluded that while each perjurious
statement might qualify as a separate criminal act, the deposition during
which they occurred was a single incident of racketeering conduct. Id.
Because the statute requires at least two predicate incidents of racketeering
conduct, we held that there was no basis for a racketeering charge. Id.

   “Incidents” of racketeering conduct under Florida law differ from the
predicate “acts” sufficient to sustain a conviction under the federal RICO
statute. State v. Russo, 493 So. 2d 504, 505 (Fla. 4th DCA 1986). Indeed,
this court has determined that, by using the term “incidents,” the Florida
legislature must have intended to capture a narrower range of conduct than
“acts” as used in the federal statute. Id.; see also State v. Lucas, 600 So. 2d
1093, 1095-96 (Fla. 1992) (“[U]nlike cases brought under the federal act,
crimes committed at the same time cannot qualify as separate incidents for
purposes of proving racketeering conduct under the Florida act.”). Thus, at
least under the Florida RICO statute as applied to the facts of this case,
multiple crimes committed at the same time qualify as only one predicate
incident. Castillo, 213 So. 3d at 931 n.1.

   Also instructive on this point is Watts v. State, 558 So. 2d 142 (Fla. 3d
DCA 1990). There, the state sought a racketeering conviction based solely on
two offenses—in that case, kidnapping and robbery—arising out of a single
incident involving a liquor truck. Id. at 143. Citing Russo, the Third District
concluded that the kidnapping and robbery were part of a single incident and
could not be separated so as to support a racketeering conviction. Id. at 144.
The same occurred here, as appellant was found to be in possession of cocaine
at the same time as the battery. His possession and battery therefore
constituted a single incident. See id.

    We find that the state did not prove an essential element of the crime of
racketeering: the element requiring that the state prove two incidents of
enumerated racketeering conduct within a five-year period. All the state
proved in this case was that appellant committed two crimes on one day
constituting one incident of racketeering activity. Without a second incident,
the state has not proven its case. As such, the trial court erred in not granting
judgment of acquittal as to the charge of racketeering. We therefore reverse
with directions for the trial court to vacate appellant’s conviction for one count
of racketeering.

   Reversed and remanded with instructions.

TAYLOR and FORST, JJ., concur.


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Not final until disposition of timely filed motion for rehearing.




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