Johnson v. State, 91-1035
| Decision Date | 26 January 1993 |
| Docket Number | No. 91-1035,91-1035 |
| Parties | 18 Fla. L. Week. D400 Winston JOHNSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, Glen P. Gifford, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., Charlie McCoy, Asst. Atty. Gen., for appellee.
Winston Johnson, convicted of robbery and classified and sentenced as an habitual offender by the trial court, brings this appeal.
On September 12, 1990, Elizabeth Wilson, the victim, held in her closed right fist $240.00 while she waited to purchase a bus ticket at the Gainesville Greyhound station. Johnson approached from her right, reached across her shoulder, "raked" her hand and grabbed the money. In the process of taking the cash, Johnson used sufficient force to tear a scab off Ms. Wilson's finger. Johnson made no statements during the transaction, and touched Ms. Wilson only during the process of taking the money. When apprehended, Johnson admitted to police that he took the money, stating that he needed it to purchase crack cocaine. On these facts the trial court denied a defense motion for judgment of acquittal on the robbery charge, and the jury returned with a conviction.
At sentencing, the state sought habitual offender treatment pursuant to notice under section 775.084, Florida Statutes (1989). Accordingly, the state presented appropriate evidence concerning Johnson's criminal record. Upon hearing the evidence, the trial court stated:
What I'm going to do is this: You are a habitual offender; when you commit an offense, you are habitualized because of your record; there's no choice.
* * * * * *
I'm going to declare you a habitual offender and sentence you to seven years in the Department of Corrections; that's the lowest under the permitted range I can go.
Johnson now argues that his motion for judgment of acquittal was improperly denied, habitual offender classification was not mandatory, despite certain language in the statute, and that in any event the trial court was not obligated to impose sentence pursuant to the habitual offender statute. We affirm the robbery conviction, but agree with Johnson on the sentencing issue, and remand to the trial court.
Robbery is distinguished from larceny by the perpetrator's use of force. Montsdoca v. State, 84 Fla. 82, 93 So. 157, 159 (1922) (citations omitted); see also, McCloud v. State, 335 So.2d 257 (Fla.1976). In the present case the evidence establishes that Ms. Wilson was holding money in her closed right fist and that Johnson used sufficient force to remove the money, and in the process to cause slight injury to Ms. Wilson's hand. The robbery statute...
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