Ben v. State, 84-583
| Decision Date | 04 January 1985 |
| Docket Number | No. 84-583,84-583 |
| Citation | 10 Fla. L. Weekly 123,461 So.2d 286 |
| Parties | 10 Fla. L. Weekly 123 Edward BEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
A jury convicted the appellant for robbery. He appeals the trial court's denial of his motion for judgment of acquittal, arguing that he was not guilty of robbery because there was no force used until after the actual taking. We disagree and affirm.
Appellant was observed by Holcomb, a Maas Brothers security guard, as he selected several shirts and took them into the men's fitting room. Holcomb followed the appellant into the fitting room and observed him stuff the shirts under his pants. The appellant then left the store with a woman companion. Holcomb approached them, identified himself, and tried to talk with them. At this time, the woman went south and the appellant ran west. Holcomb pursued and grabbed appellant, who punched Holcomb in the face and continued west. Holcomb again pursued and caught the appellant. Upon being tackled a second time, the appellant kicked Holcomb several times. Appellant was then caught by a police officer in the parking lot as he tried to get into a car driven by his woman companion.
Appellant argues that his motion for judgment of acquittal should have been granted because the taking of the shirts was completed at the time he started to fight with Holcomb, and as such, there had been no force used in the actual taking. He contends that the principles enunciated in Colbey v. State, 46 Fla. 112, 35 So. 189 (1903), should still be applied. In Colbey, the defendant pickpocket was caught by his victim, who grabbed and tussled with the defendant until the police apprehended him. The supreme court held that the evidence did not meet the force or violence required by the robbery statute. The court reasoned:
If the defendant struggled or clinched with Bousman in an effort to overpower him for the purpose of enabling him to secure the money in the pocket, there would be such force as the statute contemplates, but the force used merely in an effort to escape from the grasp of Bousman or to avoid arrest would not be such force as is contemplated by the statute.
The robbery statute under which appellant was convicted, however, provides that: "[a]n act shall be deemed 'in the course of committing the robbery' if it occurs in an attempt to commit robbery or in flight after the attempt or commission." § 812.13(3), Fla.Stat. (1981) [Emphasis added]. We agree with our sister court in the third district that the amended statute changes the rule enunciated in Colbey. See Stufflebean v. State, 436 So.2d 244 (Fla. 3d DCA 1983).
We further agree that:
Pursuant to the new statute, force or threat is considered to be contemporaneous with the taking if that force or threat of force is used to overcome a...
To continue reading
Request your trial
-
Snead v. State, 4-86-0686
...cannot be fulfilled. Several cases have held that actual violence in aid of escape are but components of a robbery. Ben v. State, 461 So.2d 286 (Fla. 2d DCA 1985); Royal v. State, 452 So.2d 1098 (Fla. 5th DCA 1984); Stufflebean v. State, 436 So.2d 244 (Fla. 3d DCA 1983); State v. Douglas, 3......
- Young v. Rockland Industries, Inc.