Foster v. State

• Decision Date: 06 March 1992
• Docket Number: No. 90-1297,90-1297
• Parties: Tyrone FOSTER, Appellant, v. STATE of Florida, Appellee. 596 So.2d 1099, 17 Fla. L. Week. D647
• Court: Florida District Court of Appeals

Page 1099

596 So.2d 1099

Tyrone FOSTER, Appellant, v. STATE of Florida, Appellee.

No. 90-1297.

596 So.2d 1099, 17 Fla. L. Week. D647

District Court of Appeal of Florida,

Fifth District.

March 6, 1992.

Rehearing and Rehearing En Banc Denied April 29, 1992.

James B. Gibson, Public Defender, and M.A. Lucas, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellee.

PETERSON, Judge.

Can a defendant be convicted of both robbery, under section 812.13(2)(c), Florida Statutes (1987), and aggravated battery, under section 784.045(1)(a), Florida Statutes (1987), when the course of conduct giving rise to the charges did not involve a weapon and involved a single incident or event? Does section 775.087, Florida Statutes (1987), enter into consideration of the first question? This latter statute requires the reclassification of a second-degree felony, in which the use of a weapon is not an essential element, to a first-degree felony when the crime is coupled with aggravated battery. In this case, no consideration was given to the existence of section 775.087. Instead, the state charged the appellant, Tyrone Foster, with robbery and aggravated battery in two separate counts. The trial court gave the standard jury instructions for the two crimes, and the jury found him guilty.

The incident out of which the conviction arose occurred on March 30, 1988. Foster and his accomplice, Spook, attacked the victim outside a convenience store by pushing him down onto the pavement and then hitting him in an attempt to take his wallet. While on the ground, the victim repeatedly said that he had nothing and attempted to use his hand to keep the wallet. The attackers succeeded in obtaining the wallet after ripping the pocket from the victim's trousers. During the robbery in which $17 was taken, the victim's elbow was shattered and required extensive surgery.

Foster appeals his judgment and sentence for aggravated battery, alleging violation of the double jeopardy clauses of the federal and state constitutions in that the convictions were based upon the same conduct.

The robbery statute, section 812.13(1), defines the offense as a "taking of money ... from the person or custody of another when in the course of the taking there is the use of force, violence, assault, or putting in fear." The statute does not distinguish between the variable degrees of force, violence, assault, or fear that is used in accomplishing the crime. Section 812.13(2) elevates this second-degree crime to one of the first degree if the offender carries a firearm or other deadly weapon while committing the robbery. No weapons were used in the instant case.

Section 812.13(3)(b) defines the words "in the course of the taking" used in subsection (1) of the statute defining robbery. Subsection (3)(b) states: "An act shall be deemed 'in the course of the taking' if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events." The evidence in the instant case establishes conclusively that the battery committed by Foster was an act or a series of acts which occurred in the course of the taking.

Factually, the instant case is similar to Rowe v. State, 574 So.2d 1107 (Fla. 2d DCA 1990), review denied, 576 So.2d 290 (Fla.1991), where the victim was departing from a supermarket when the defendant rushed toward her and grabbed her purse. As the victim struggled to retain the purse, she fell or was pushed to the ground and suffered a broken elbow and shoulder and a slight concussion. The defendant ran off with the purse but was apprehended and charged with aggravated battery and robbery. The similarities end here because, instead of finding the defendant guilty of aggravated battery, the jury found him guilty of robbery and the lesser included offense of simple battery.

The Second District, agreeing with our earlier decision in Sheppard v. State, 549 So.2d 796 (Fla. 5th DCA 1989), noted: "The force that was used to take the victim's purse and was necessary to constitute the offense of robbery was the same force used to support the battery conviction." Rowe, at 1107. Based on these facts and pursuant to section 775.021(4)(b)(3), the court concluded that the battery conviction was a category two lesser included offense of robbery, that the statutory elements of battery were subsumed by the greater offense of robbery, and that convictions of both were improper. The instant case differs from Rowe in that Foster was convicted of aggravated battery and robbery, both second-degree felonies. Generally, a felony cannot be subsumed by another of the same degree. See State v. Carpenter, 417 So.2d 986 (Fla.1982); Ray v. State, 403 So.2d 956 (Fla.1981). It is for that reason that aggravated battery is not listed in either of the two categories in the schedule of lesser included offenses of robbery without a weapon. See In Matter of Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981), modified, 431 So.2d 599 (Fla.1981).

The parties have not cited nor have we found a reported case on double jeopardy in which a defendant was convicted of these two crimes where, during the commission of a robbery, the defendant also commits an aggravated battery without a weapon. ¹ In Cave v. State, 578 So.2d 766 (Fla. 1st DCA 1991), the First District sustained dual convictions for armed robbery, a first-degree offense, and aggravated battery, a lesser included second-degree offense. The Cave court stated in dictum: "Since a robbery may, but does not necessarily include an aggravated battery, the statutory offense of 'robbery' does not 'subsume' the crime of aggravated battery. Thus, the same act may be punishable as two different offenses under section 775.021(4)(a)." Cave, at 767. The court pointed out that the offenses were committed after July 1, 1988, the effective date of the amendment to section 775.021(4), Florida Statutes (Supp.1988). The court also pointed out that its decision created conflict with the Second and Fifth Districts because of the Rowe and Sheppard decisions.

The double jeopardy question raised in the instant case requires an analysis of legislative intent as enunciated in Carawan v. State, 515 So.2d 161 (Fla.1987), since the incident giving rise to the convictions took place prior to the July 1, 1988, effective date of section 775.021(4), Florida Statutes (Supp.1988). The first rule under Carawan is that "clear and precise statements of legislative intent control...." Carawan, at 165. Such statements are usually nonexistent, as the opinion noted, and the instant case is no different. The second rule is that, in the absence of any clearly discernible legislative intent, the test established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), must be used in determining intent.

Blockburger requires comparison of the elements of the crimes of robbery and aggravated battery. If each has one element that the other does not have, then a presumption arises that the offenses are separate, a presumption that nevertheless can be defeated by evidence of a contrary legislative intent. Id.; Sec. 775.021(1), Fla.Stat. (1987). Application of the comparison test indicates that each crime has an element the other does not. To prove aggravated battery, the state need not establish an intent to deprive. To prove robbery, the state is not required to establish that the defendant intentionally or knowingly caused great bodily harm, permanent disability, or permanent disfigurement to the victim. If, in the course of a simple robbery without a weapon, the robber commits a battery in which he knowingly causes great bodily harm to his victim, the robber, for whatever his reasons, has committed a second crime for which punishment is also due. ² Forming an intent to deprive a person of property and using force, violence, assault, or placing the victim in fear to achieve that purpose is different from intentionally causing great harm, permanent disability, or permanent disfigurement to an individual. The jury, based on the standard robbery and aggravated battery instructions given, properly found Foster guilty of both crimes. It may be argued that the finder of fact should not be required to "measure" the degree of force or violence used in the robbery, but such is the task assigned to it when it must determine whether a defendant is guilty of battery under section 784.03 or aggravated battery under section 784.045.

Having found that each crime has a non-common element requires further analysis to determine whether the presumption that the offenses are separate may be defeated by evidence of contrary legislative intent. ³ This analysis begins to raise a doubt that convictions for both crimes are proper since evidence of contrary legislative intent may exist to defeat the presumption that the offenses are to be treated separately. That doubt stems from section 775.087, Florida Statutes (1987), which requires an upward reclassification of a felony when an aggravated battery occurs during the commission of the felony. This statute appears to eliminate a separate charge of aggravated battery when it has been proven that a defendant committed that offense during the commission of a felony in which the use of a weapon or firearm was not an essential element. It appears that aggravated battery is always a lesser included offense when a felony is enhanced by that offense under section 775.087 and that such enhancement is required when that offense is coupled with another qualifying felony. Nonetheless, we must conclude that, under State v. McKinnon, 540 So.2d 111 (Fla.1989), a post-Carawan, pre-July 1, 1988, case, a defendant can be convicted of both aggravated battery and robbery.

In McKinnon, the...