Florida/Georgia Personal Injury & Workers Compensation

...We find the statutes offended by Smith's behavior free from constitutional defect; the proscriptions they communicate are not difficult to divine. Section 836.10 makes it a felony to send or procure the sending of any document threatening to kill or injure the recipient or a family member. Section 838.021(3)(b) condemns threats of harm to public servants or persons with whose welfare such servants are entrusted. Section 836.10 is justified by the right of all persons to live free of unexpected and unwarranted fear of harm; and section 838.021(3)(b) is designed to protect public officials in the discharge of their duties without unlawful intimidation....

...We are persuaded that the trial court fairly considered the relevant criteria and that the decision to depart downward from the guidelines is supported by the record. Tanner v. State, 468 So.2d 505 (Fla. 2d DCA 1985). AFFIRMED. RYDER, A.C.J., and DANAHY, J., concur. NOTES [1] Respectively, § 836.10, Fla. Stat. (1987) and § 838.021(3)(b), Fla....

...ly reacting to the police dog biting at his head. In this case, the collateral crime evidence was relevant to disprove this theory. Such evidence was admissible. See Wuornos, supra, and Williams, supra . 3. Sufficiency of allegations as to count III Section 838.021, Florida Statutes, states, Corruption by threat against public servant....

...(b) Whoever threatens unlawful harm to any public servant or to any other person with whose welfare he is interested shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Appellant in this case was charged with a violation of section 838.021(3)(b), which states in part, (3)(b) Whoever threatens unlawful harm to any public servant or to any other person with whose welfare he is interested shall be guilty of a felony of the third degree, ... In Harrison v. State, 641 So.2d 486 (Fla. 5th DCA 1994), the offender was charged with a violation of section 838.021(3)(a), which states in part, (3)(a) Whoever unlawfully harms any public servant or any other person with whose welfare he is interested shall be guilty of a felony of the second degree, ... In Harrison, the court held that "subsection 838.021(3)(a) merely enumerates the penalty imposed for a conviction pursuant to subsections (1)(a) or (b) and that the court's denial of Harrison's motion to dismiss Count I was error." In this case, as in Harrison, the state failed to allege a violation of the essential elements of the offense charged....

...We have jurisdiction even though *350 it is unnecessary to the determination of this cause for us to pass upon the constitutional question. P.C. Lissenden Co. v. Board of County Commissioners of Palm Beach County, 116 So.2d 632 (Fla. 1959). Defendant was charged by information with corruption by threat under section 838.021, Florida Statutes (1977), for allegedly threatening harm to a police officer and his family for the purpose of avoiding arrest. After trial by jury, he was found guilty of attempted corruption by threat, as a lesser included offense of the crime charged. The determinative issue is whether attempted corruption by threat is a lesser included criminal offense under section 838.021....

...then he must instruct the jury on the subject of such attempt, and the jury may find guilt accordingly. In this situation it is immaterial whether the accusatory pleading specifically charges an attempt... . See also Milazzo v. State . A reading of section 838.021, Florida Statutes (1977), reveals that the attempt to carry out the criminal act of corruption by threat is included within the definition of the act itself....

...This statute does not require that the intent or purpose of the threat be accomplished in order for the act to be considered corruption by threat. All that it requires is that there be a threat of unlawful harm. The attempt to corrupt is itself a violation of section 838.021; therefore, there can be no lesser included offense of attempted corruption by threat....

...Butterworth, Attorney General, Tallahassee; and Joan Fowler, Assistant Attorney General, West Palm Beach, for appellant. Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Assistant Public Defender, Fort Lauderdale, for appellee. GROSS, Judge. Appellee William Hart was charged with corruption by threat under section 838.021(1) as enhanced by section 775.085 [1] , Florida Statutes (1995)....

...The state appeals an order dismissing with prejudice an information charging that appellee unlawfully threatened unlawful harm to a public servant, to wit: a circuit judge, with the intent to influence said public servant in the performance of his public duty in violation of section 838.021, Florida Statutes. The issue presented is whether section 838.021(3)(b), Florida Statutes (1989), is unconstitutional because it impermissibly creates a class of protected governmental servants who are protected from threats which have no relation to their official duties. We conclude that the statute is not unconstitutional, and reverse the ruling of the trial court. The challenged statute, section 838.021, Florida Statutes (1989), provides: 838.021 Corruption by threat against public servant....

...In this vein, the statute was deemed reasonably related to the legislative purpose of affording greater protection to the officer or firefighter when the officer or firefighter was engaged in protecting the public welfare. In the instant case, the trial court found that section 838.021(3)(b) is in violation of the Equal Protection Clause, based on the view that the statute does not relate the proscribed threats to a public servant to the performance of any lawful governmental duty....

...The order under review indicates that the trial court's analysis encompassed comparisons and analogies to statutes having a similar purpose, but the trial court did not resort to general rules of statutory construction. Application of principles of statutory construction to section 838.021 indicates that, contrary to the trial court's view, the statute properly relates the proscribed threats to public servants to an intent to influence or affect the performance of the public servant's duties....

...[1] In lower tribunal case number 05-9631, Lanier was charged with battery on a law enforcement officer, in violation of section 784.07(2)(b), Florida Statutes (2002), battery on a facility employee, in violation of section 784.078, Florida Statutes (2002), and threatening a public servant, in violation of section 838.021, Florida Statutes (2002)....

...PROCEDURAL HISTORY Petitioner Michael K. Reilly was charged by information with two counts of making a written threat to kill or do bodily injury pursuant to § 836.10, Florida Statutes (1985); two counts of corruption by threat against a public servant pursuant to § 838.021, Florida Statutes (1985); and one count of carrying a concealed weapon pursuant to § 790.01, Florida Statutes (1985)....

...and for Lee County, Florida. On October 27, 1987, Petitioner was found guilty on all five counts. On December 14, 1987, the Florida trial court sentenced Petitioner to two years and eleven months incarceration on the first count of corruption under § 838.021 and to five years probation on the second count of corruption....

...ce of two years and eleven months incarceration and thirty years probation for all five counts. [1] Petitioner brought a direct appeal of his sentence before the Florida *955 Second District Court of Appeal. The issues raised on appeal included: (1) Section 838.021, Florida Statutes was unconstitutional; (2) Section 836.10, Florida Statutes was unconstitutional; (3) Section 790.01 was unconstitutional and has been impliedly repealed by the legislature; (4) the conviction under both §§ 838.021 and 836.10 constituted double jeopardy; (5) Appellant Reilly was justified in using deadly force to defend against the illegal orders of the court; (6) the trial court erred in denying Appellant Reilly's motion to proceed pro se at trial;...

...person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the constitution or laws or treaties of the United States. Petitioner raises several grounds in his petition including: (1) Sections 838.021, 836.01, and 790.01, Florida Statutes (1985), are unconstitutional; (2) Petitioner's convictions under both §§ 838.021 and 836.10 constitute double jeopardy; (3) Petitioner's convictions under §§ 838.021, 836.10, and 790.01 were against the weight of the evidence and Petitioner was justified in using deadly force to defend against an illegal order of the court; (4) trial court erred in denying Petitioner's motion to proceed pro se at trial...

...s state remedies and is "in custody" for purposes of §§ 2241 and 2254, therefore, Petitioner's claims on the remaining counts are properly before this Court. A. Constitutional Challenges to Florida Statutes In Ground one, Petitioner alleges that §§ 838.021, 836.10, and 790.10, Florida Statutes, are unconstitutionally vague and overbroad. In addition, Petitioner contends that § 838.021 violates his constitutional right of free speech and that it exceeds the power of the state legislature because it imposes an incarcerative sanction that is greater than the sanction possible for comparable federal law; that § 836.10 is i...

...A statute is void for vagueness if it fails to give adequate notice to people of ordinary intelligence concerning the conduct the statute proscribes. United States v. Hutson, 843 F.2d 1232, 1235 (9th Cir.1988); State v. Wilson, 464 So.2d 667, 668 (Fla. 2d DCA 1985). 1. Claims Involving Section 838.021, Florida Statutes Vagueness Petitioner alleges that § 838.021 is vague because it violates constitutionally protected speech....

...United States v. Hutson, 843 F.2d 1232 (9th Cir.1988); United States v. Quinn, 514 F.2d 1250, 1268 (5th Cir.1975). The Florida courts are in agreement. In State v. Slaughter, 574 So.2d 218 (1st DCA 1991), the First District Court of Appeal held that § 838.021 was not unconstitutional....

...s. Id. at 220. Additionally, the Fifth District Court of Appeal stated that the statute provides protection to public servants from coercion or unlawful influence in the performance of public duty. Bragg v. State, 475 So.2d 1255 (Fla. 5th DCA 1985). Section 838.021 gives adequate notice to ordinary citizens concerning the statute's proscribed conduct. Therefore, the statute is not unconstitutionally vague. Overbreadth Petitioner argues that the term "harm" as used in § 838.021 and as defined in § 838.014 is subject to many interpretations and therefore is overbroad. Section 838.021 prohibits threats to influence a public servant in the performance of a public duty....

...State, 532 So.2d 50, 52 (Fla. 2d DCA 1988). Because of the statute's limited objectives and because threats to injure persons are not constitutionally protected, no First Amendment rights are compromised by legislation prohibiting such threats. Accordingly, § 838.021 is not overbroad. Legislative Power Petitioner also argues that the sentence imposed for violating § 838.021 exceeds the power of the state legislature because the penalty is two and one-half times the sentence for a comparable federal statute. The federal extortion statute, 18 U.S.C. § 876, provides for a maximum term of twenty years imprisonment and $5,000 fine. Section 838.021 provides for a maximum penalty of five years imprisonment and a $5,000 fine for the third degree felony of sending threatening letters....

...See §§ 775.082, 775.083, Florida Statutes (1985). Therefore, the maximum penalty under state law is less than the possible penalty under federal law. Petitioner was sentenced to two years and eleven months imprisonment on the first count of violating § 838.021 and to probation on the second count....

...This partial repeal does not affect Petitioner's conviction. Skinner v. State, 383 So.2d 767, 768 (Fla. 3d DCA 1980), Art. X, § 9, Fla. Const. B. Claims Involving Double Jeopardy Violations In Ground two, Petitioner alleges that the convictions under §§ 838.021 and 836.10 constitute fundamental error in violation of the Fifth Amendment's prohibition against double jeopardy....

...In Blockburger, the Supreme Court held that two offenses are the same unless each requires proof of an additional fact which the other does not. Id. at 304, 52 S.Ct. at 182. Petitioner argues there is no proof of fact required under § 836.10 which is not already required under § 838.021. The elements of proof for conviction under § 838.021 require that the unlawful threat be made against a public servant in order to induce him or her to perform an act in violation of a public duty. The element of proof for conviction under § 836.10 only requires that a written threat be made to any individual. Section 838.021 requires that the target be a public servant while § 836.10 does not. Section 836.10 requires that the threat be written while § 838.021 does not....

...Based on the record presented, this Court finds there is sufficient evidence to support the trial court's verdict. Petitioner cites to Bragg v. State, 475 So.2d 1255 (Fla. 5th DCA 1985) to advance his argument that he was justified in his actions. In Bragg, Defendant was charged under § 838.021 for telling a deputy sheriff to get off his land and threatening to kill the deputy. The Fifth District Court of Appeal noted that the deputy did not have a warrant or any other reason for being on Defendant's property. Id. at 1257. The Florida district court reversed the defendant's conviction for corruption by threat under § 838.021 because there was no evidence that Bragg did anything to corruptly influence the deputy....

...Lesser Included Offense The degree of this crime depends on the severity of the underlying offense that is the subject of the harassment. See § 914.22(4), Fla. Stat. Comment This instruction was adopted in 2013. 21.12 CORRUPTION BY [HARM] [THREAT OF HARM] AGAINST A PUBLIC SERVANT § 838.021, Fla....

...regarding any act or omission which the defendant believed to be [or (victim) represented as being,] within the official discretion of (victim), in violation of a public duty, or in performance of a public duty. Give if requested and if applicable. § 838.021(2), Fla....

...he responsibilities of public office. Lesser Included Offense No lesser included offenses have been identified for these offenses. Unlawfully harming a public servant is a second degree felony. Threatening unlawful harm is a third degree felony. See § 838.021(3)(a) and (b), Fla....

...cedure as for a motion for judgment of acquittal. J.P. v. State, 855 So.2d 1262 (Fla. 4th DCA 2003). J.G. asserts that the state failed to *276 prove a prima facie case as to the required specific intent that the threat be conveyed. Florida Statutes Section 838.021, Corruption by Threat Against Public Servant, makes it a felony to harm or to threaten harm with the intent or purpose to influence a public servant [2] to do, or not do, an act within the discretion of the public servant, or in violation, or performance, of a public duty....

...We agree there was not sufficient evidence to support the corruption charge and the felony firearm possession charge but hold that there was barely sufficient evidence to support the unlawful firearm discharge count. The elements of the crime of corruption by threat against a public servant are set out in section 838.021, Florida Statutes (1983)....

...ic servant regarding any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty. * * * * * * § 838.021, Fla....

...But it was not proved at trial that the deputy was there in such circumstance. The judgment and sentence for unlawful firearm discharge is affirmed. The convictions for corruption by threat and felony firearm possession are reversed. AFFIRMED in part; REVERSED in part. ORFINGER and COWART, JJ., concur. NOTES [1] § 838.021, Fla....

...Resentencing is necessary if, as he alleges, Rankin has but one prior conviction from this state. Reviewing the record, which contains court documents from that case, we find, not one but two separate convictions for "threatening a public servant," a violation of section 838.021(3)(b), Florida Statutes (1987)....

...tion for judgment of acquittal, because, although there was a threat, the element of intent to influence performance of an act by a public servant was not established. We agree and reverse. Corruption by threat against a public servant is defined in section 838.021, Florida Statutes (2006), as follows: Corruption by threat against public servant (1) Whoever unlawfully harms or threatens unlawful harm to any public servant, to his or her immediate family, or to any other person with whose welfare...

...The trial court did not abuse its discretion in determining that Nugent willfully committed a violation of probation by battering the victim. As a second issue, Nugent maintains that the evidence was insufficient to prove corruption by threat to a public official. Section 838.021, Florida Statutes, makes it a crime to threaten harm to a public official with the intent to influence a discretionary act by that official....

...Stat. Comment This instruction was adopted in 2013 [131 So. 2d 720] and amended in 2018. - 15 -  21.12 CORRUPTION BY [HARM] [THREAT OF HARM] AGAINST A PUBLIC SERVANT § 838.021, Fla....

...dant believed to be [or (victim) represented as being,] within the official discretion of (victim), in violation of a public duty, or in performance of a public duty. Give if requested and if applicable. § 838.021(2), Fla....

...There is no crime of Attempt to Corrupt Public Servant by Threat. See Pagano v. State, 387 So. 2d 349 (Fla. 1980). - 17 -  Unlawfully harming a public servant is a second degree felony. Threatening unlawful harm is a third degree felony. SeeSee § 838.021(3)(a) and (b), Fla....

...pplicable here does not mean appellant did not commit a crime in yelling at the school behavior technician, “I’ll shoot you and shoot up your house.” Appellant did commit a crime – corruption by threat against public servant, in violation of section 838.021, Florida Statutes (2019), which reads, in pertinent part: (1) It is unlawful to harm or threaten to harm any public servant, his or her immediate family, or any other person with whose welfare the public servant is...

...[(3)](b) Whoever threatens unlawful harm to any public servant or to any other person with whose welfare the public servant is interested shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 838.021, Fla. Stat. (2019). See also J.G. v. State, 915 So. 2d 274, 275- 76 (Fla. 4th DCA 2005) (affirming denial of juvenile’s motion for dismissal of corruption by threat charge under section 838.021, where the juvenile had argued the state failed to prove his threatening statements to kill a school employee were made with the intention of influencing a public servant’s performance; the juvenile made the statements in an angry a...

...,” supporting the inference that the juvenile intended the statements not as private communications, but with the intent that the employee be informed of his statements). Why the state mischarged this crime under section 790.163(1) instead of section 838.021 is a mystery to me....

against a public servant, a third-degree felony. § 838.021, Fla. Stat. (1993). This statute prohibits a person

...orida Rule of Appellate Procedure 3.800(a). The State commendably concedes the possibility Del Rio's total concurrent sentences for the third-degree felonies or aggravated stalking, § 784.048(3), Fla. Stat. (2004), and threatening a public servant, § 838.021(3)(b), Fla....

PER CURIAM. Appellant, a juvenile, was charged with violation of section 838.021(l)(a) and (3)(b), *300 Florida Statutes (Supp.1990), for threatening a police officer with death and bodily harm by way of petition for adjudication of delinquency....

...On cross-examination, the officer acknowledged that the threats were made while appellant was under arrest and handcuffed, but the officer took the threats to his person seriously, notwithstanding the handcuffs. Appellant acknowledges that he did not challenge the facial constitutionality of section 838.021, Florida Statutes, at trial, but correctly argues that this can be raised for the first time on appeal....

...t and sentenced as a habitual offender. His concurrent sentence of ten years imprisonment followed by five years probation for the corruption offense exceeds the ten year maximum for the corruption conviction under the habitual offender statute. See § 838.021, Fla.Stat....

STONE, Chief Judge. We affirm Appellant’s conviction for corruption by threat under section 838.021, Florida Statutes (1997)....

...Appellant argues that the information actually charged Appellant with harming the officer in question, rather than threatening to harm him, and because there was no evidence that Appellant physically harmed the officer, he should have been acquitted. Section 838.021 provides that an accused can be convicted of “corruption by threat” in one of two ways; either unlawfully harming a public servant or unlawfully threatening to harm a public servant....

...did unlawfully harm a public servant, to-wit... .William Hart did threaten to get said officer and conduct a cross burning with plenty of rounds (bullets) at said officer’s house if [the officer] placed defendant under arrest, ... contrary to ... F.S. 838.021(l)(a), (3)(a).” Appellant asserts that the way the information is worded, it charged him only with harming the officer, rather than threatening harm, notwithstanding the wording in the “to wit” clause....

...The appellant appeals the summary denial of his motion to correct illegal sentence. Following concession of error by the State, we reverse and remand for further proceedings. Following a trial, the appellant was convicted of corruption by threat against a public servant, a violation of section 838.021(l)(a), Florida Statutes (2011), and sentenced as an habitual- felony offender (HFO) to 7-years’ imprisonment, with a 5-year minimum mandatory imposed pursuant to the Prison Releasee Reoffender (PRR) statute.1 :He filed a motion to c...

...apply to convictions which “involve [] the use or threat of physical force or violence against an individual.” State v. Hackley, 95 So.3d 92, 95 (Fla.2012). To prove the crime- of corrupting a public servant-by threat pursuant to; section *1284 838.021(1), the State must prove that a defendant “harm[ed] .or threatened] to harm any public servant, his or her immediate family, or any other person with whose welfare the public servant is interested.” § 838.021(l)(a), Fla.- Stat....

...The -legislature has* defined “harm” as used in Chapter 838, Florida Statutes (2011), to mean “pecuniary or' other loss, disadvantage, or injury to- the person affected.” § 838.014(5), Fla. Stat. (2011) (emphasis added). Thus, a defendant need not use or threaten to use physical force or violence in order to violate section 838.021(l)(a)....

PER CURIAM. AFFIRMED without prejudice to appellant’s right to raise, in a rule 3.850 motion, the denial of effective assistance of counsel for failing to properly raise and argue the unconstitutionality of section 838.021(3)(b), Florida Statutes (1985), as applied, and the legal sufficiency of the information....

...cedure as for a motion for judgment of acquittal. J.P. v. State, 855 So.2d 1262 (Fla. 4th DCA 2003). J.G. asserts that the state failed to *276 prove a prima facie case as to the required specific intent that the threat be conveyed. Florida Statutes Section 838.021, Corruption by Threat Against Public Servant, makes it a felony to harm or to threaten harm with the intent or purpose to influence a public servant 2 to do, or not do, an act within the discretion of the public servant, or in violation, or performance, of a public duty....

...We grant the motion for rehearing and clarification, withdraw our previously issued opinion, 1 and substitute the following in its place. Appellant was convicted of three counts of extortion, one count of threat against a public servant in violation of section 838.021, Florida Statutes (1997), and one count of aggravated stalking....

...After hearing oral argument and carefully considering the transcript of appellant’s trial, we re *299 verse appellant’s convictions and sentences for the extortion offenses charged in counts I and IV of the information filed against her, and for the violation of section 838.021, Florida Statutes (1997), charged in count II of that information....

...ped P.B., and we affirm the trial court’s order withholding adjudication for resisting an officer without violence. B. Corruption By Threat Against A Public Servant With regards to the second issue raised on appeal, P.B. was charged with violating section 838.021(l)(a), Florida Statutes (2009)....

...ful. Section 836.10 — Written threats to kill or do bodily injury; punishment. This statute provides that it is a felony of the second degree to write or compose and send or direct the sending of a threatening communications to another person. Section 838.021 — Corruption by threat against public servant....

Harrison’s motion to dismiss Count I because section 838.021(3)(a) is both a charging and a penalty provision

...Count 2 alleged that Teele corruptly threatened Detective Bullard and other police officers with the intent and purpose to improperly prevent the performance of their duty with regard to an official police investigation in violation of Florida Statutes section 838.021(3)(B)....

...believe to be, or the public servant represented as being, within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty, to wit: CONDUCTING AN OFFICIAL POLICE INVESTIGATION, in violation of s. 838.021(3)(b) Florida Statutes,, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida....

...Teele renewed his motion for judgment of acquittal on Count 2 and moved for new trial. The trial court denied both motions. 1 *1199 II. ANALYSIS We agree with Teele that the State’s evidence was insufficient to support a conviction for corruption by threat against a public servant, under section 838.021(3)(b), Florida Statutes (2004)....

...s to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.”); Pollen v. State, 834 So.2d 380 (Fla. 3d DCA 2003). The elements of the crime of corruption by threat against a public servant are set out in section 838.021, Florida Statutes (2004)....

...The deputy went to speak to Bragg’s wife to determine if she was in danger. After the deputy came onto Bragg’s property, *1201 Bragg told him to go away or he would kill him. The jury convicted Bragg. The Fifth District Court of Appeal reversed Bragg’s conviction under section 838.021, Florida Statutes (2004), because the elements of the crime required proof that the threat of harm was used to influence the person threatened to do, or not do, some official act....

...When Detective Bullard first pulled his vehicle over on to the shoulder of interstate 195 and stopped, Teele did not know that Detective Bullard was a police officer. Any alleged threat that the State may claim to have occurred at that time would clearly not constitute a violation of section 838.021....

...Teele.” III. CONCLUSION In sum, the State failed to establish here that Teele was aware of an ongoing police investigation. Thus, Teele’s conduct was legally insufficient to support a conviction for corruption by threat against a public servant, under section 838.021(3)(b), Florida Statutes (2004)....

...ice system to remind the deputy that he could look up the deputy’s address on the witness list to make good on his threat to the deputy’s family. The conviction and sentence are affirmed. ■- AFFIRMED. COBB, PETERSON and GRIFFIN, JJ., concur. . § 838.021, Fla....