Graham v. State, 79-36

Decision Date03 November 1981
Docket NumberNo. 79-36,79-36
Citation406 So.2d 503
PartiesWalter T. GRAHAM, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender

and William Liston, Legal Intern, for appellant.

Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, NESBITT and BASKIN, JJ.

NESBITT, Judge.

Graham appeals from his judgment of conviction of robbery with a firearm and display of a firearm during the commission of a felony. Of the numerous errors complained of on appeal, only two require our attention.

The first basis relied upon for reversal was the failure of the trial court to charge on specific intent with respect to the offense of robbery. The principal defense at trial was that the defendant was voluntarily intoxicated. Indeed, he pressed that defense to the point that during closing argument his counsel in effect conceded that the defendant was the perpetrator of the robbery, but that his intoxicated state rendered him incapable of committing a robbery.

One of the requisite elements of the offense of robbery is specific intent to permanently deprive the owner of his property. Bell v. State, 394 So.2d 979 (Fla. 1981). Voluntary intoxication is relevant with respect to the capacity or ability of the accused to perform with a specific intent. Cirack v. State, 201 So.2d 706, 709 (Fla. 1967); Garner v. State, 28 Fla. 113, 9 So. 835, 845 (1891); Fouts v. State, 374 So.2d 22 (Fla.2d DCA 1979).

Graham concedes, as he must, that he did not request the trial court to charge specific intent as an essential element of robbery. He further concedes that he is not entitled to reversal unless the failure of the trial court to give such a jury instruction constituted fundamental error. In an extensive analysis of this issue, Judge Schwartz, speaking for the court in Williams v. State, 400 So.2d 542 (Fla.3d DCA 1981), concluded that the failure to charge on specific intent does not constitute fundamental error unless there was an issue injected at trial with respect to that particular element. In harmonizing the decisional law of this state, he concluded:

(F)undamental error occurs in such a situation only when the omission or error in the definition of a crime is pertinent or material to what must actually be considered by the jury in order to convict.

400 So.2d at 543.

Insofar as the defense's position was primarily based on voluntary intoxication, which bears upon the capacity or ability of the accused to form and entertain the specific intent, it is undeniable that the defense made specific intent a material issue. Consequently, the failure to so instruct mandates the reversal of the defendant's conviction.

The remaining argument which deserves attention is the alleged error in denying defendant's motion to suppress tangible physical evidence. It was alleged that on March 20, 1978, the defendant drew a gun in a Miami bar and advised the barmaid to turn over all of the cash from the register. The barmaid as well as two of the customers gave police a description of the alleged robber. One of the bar patrons wrote down the Michigan license number of the defendant's car and gave this information to the police. Officer Robert Love ran a teletype on the license number which gave him an address for the owner of the vehicle. The following day, the police checked this location and learned that the defendant was at a motel on Biscayne Boulevard. On March 23, three days after the incident, the police went to the motel and learned that the defendant had checked out on the previous day. Based on information which he received, Officer Love contacted the Deerfield Police Department to ascertain if the defendant and his vehicle were located at a certain motel and one-half hour later this was confirmed. Officer Love and a partner drove from Miami to the motel in Deerfield Beach, announced their presence, and attempted to break down the door. The defendant opened the door whereupon the officers discovered cash, clothing, and the keys to the automobile. They went outside to the car and, according to Officer Love's testimony, inventoried the vehicle. In the trunk of the car, they found a suitcase which contained a handgun wrapped in a towel. Defendant's motion to suppress the handgun and the cash was denied.

All searches without a warrant are per se unreasonable unless conducted within the framework of a few established exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The exception relied upon by the appellee was that a search of the motel room was made incident to a lawful arrest. We reject this contention.

The Fourth Amendment prohibits police officers from making a warrantless, nonconsensual entry into a suspect's home to make a routine arrest absent exigent circumstances....

To continue reading

Request your trial
14 cases
  • People v. Oliver
    • United States
    • Michigan Supreme Court
    • September 19, 1983
    ...me go. Let me go." Such extreme and unusual circumstances, however, did not exist in the instant case. Conversely, in Graham v. State, 406 So.2d 503 (Fla.App.1981), the court held that a In a case factually analogous to the instant case, the court, in State v. Holtz, 300 N.W.2d 888, 893 (Io......
  • Rolling v. State
    • United States
    • Florida Supreme Court
    • March 20, 1997
    ...have time to obtain a warrant and then enter under that authority. Jennings v. State, 419 So.2d 750 (Fla. 2d DCA 1982); Graham v. State, 406 So.2d 503 (Fla. 3d DCA 1981). Moreover, an entry based on an exigency must be limited in scope to its purpose. Thus, an officer may not continue her s......
  • Linehan v. State
    • United States
    • Florida Supreme Court
    • August 29, 1985
    ...Harris v. State, 415 So.2d 135 (Fla. 5th DCA), review denied, 419 So.2d 1198 (Fla.1982) (burglary and battery); Graham v. State, 406 So.2d 503 (Fla. 3d DCA 1981) (robbery); Mellins v. State, 395 So.2d 1207 (Fla. 4th DCA), review denied, 402 So.2d 613 (Fla.1981) (battery on police officer); ......
  • Lavado v. State
    • United States
    • Florida District Court of Appeals
    • May 28, 1985
    ...is a defense to robbery which requires the specific intent to permanently deprive the owner of his property. See Graham v. State, 406 So.2d 503 (Fla. 3d DCA 1981).3 In Pope, the court distinguished Dicks v. State, 93 So. 137, on the ground that the "nature and purpose of the question in thi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT