McCloud v. State

Citation335 So.2d 257
Decision Date30 June 1976
Docket NumberNo. 48710,48710
PartiesCharles McCLOUD, a/k/a Charles N. McCloud, Appellant, v. STATE of Florida, Appellee.
CourtUnited States State Supreme Court of Florida

Jack O. Johnson, Public Defender, and Dan P. Brawley, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Charles Corces, Jr., Richard W. Prospect and Richard L. Wilson, Asst. Attys. Gen., for appellee.

ENGLAND, Justice.

By direct appeal we have before us for review the convictions of Charles McCloud for manslaughter and robbery. Our appellate jurisdiction is properly invokved inasmuch as the trial court directly passed upon and upheld the constitutionality of Section 39.02(5)(c), Florida Statutes (1975), 1 which directs that minors be tried as adults following an indictment for certain major felonies. McCloud was a minor when an indictment was returned against him for first degree murder and for robbery.

The principal facts of this case are relatively simple. The state produced medical and eyewitness testimony which established that an elderly woman died as a result of a fall which occurred during the course of an episode caused by McCloud's attempt to seize her purse in a parking lot in the City of Lake Wales. Among those testifying as an eyewitness was Pernell Robinson, a companion of McCloud at the time of the crime. Upon proper instructions the jury returned guilty verdicts of manslaughter and robbery, and the trial court imposed concurrent sentences of 15 and 30 years imprisonment.

Several errors have been asserted by McCloud concerning his conviction and sentence, principal among which are the validity of Section 39.02(5)(c), the sufficiency of the evidence adduced at trial, the validity of his sentences, and the allegedly prejudicial manner in which Pernell Robinson was questioned by the trial judge. Our review of the record discloses no reversible error, and we affirm the trial court in all respects.

(1) Section 39.02(5)(c), Florida Statutes (1975), provides:

'A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the jurisdiction of the court as set out in § 39.06(7) unless and until an indictment on such charge is returned by the grand jury, in which event and at which time the court shall be divested of jurisdiction under this statute and the charge shall be made and the child shall be handled in every respect as if he were an adult.'

McCloud argues that this section is unconstitutional because the happenstance of whether a minor will be tried as an adult depends upon a grand jury indictment for certain major offenses, which in turn is controlled by a prosecutor's unfettered discretion to charge such offenses. We recently rejected this same attack on the statute in Johnson v. State, 314 So.2d 573 (Fla.1975), and we find no reason to reconsider that decision now. McCloud's suggestion that the statute is in any event unconstitutional as applied to him is unfounded, as our later recitation of the proven facts will show. The trial court properly denied McCloud's motion to dismiss charges against him based on the invalidity of this statute.

(2) The second issue raised by McCloud is that the state did not prove the crime of 'robbery', which consists of an unlawful taking by force, fear, assault or violence. 2 In Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922), the 'nice' distinction between robbery and larceny was explained to be the addition to mere taking of a contemporaneous or precedent force, violence, or of an inducement of fear for one's physical safety. Any degree of force suffices to convert larceny into a robbery. Where no force is exerted upon the victim's person, as in the case of a pickpocket, only a larceny is committed. See Colby v. State, 46 Fla. 112, 35 So. 189 (1903). The facts developed at McCloud's trial indicate that he gained possession of his victim's purse not by stealth, but by exerting physical force to extract it from her grasp. McCloud's victim carried her handbag by a strap which she continued to hold after the purse had been seized by McCloud. She released the strap only after she fell to the ground. Furthermore, there was evidence the jury could believe which showed that McCloud attempted to kick his victim while she lay on the ground and after the purse had been secured. Although McCloud would have preferred that the jury disbelieve this testimony, the evidence before the jury was adequate to support a verdict of robbery.

(3) McCloud suggests that the trial court could not properly impose sentences on both guilty verdicts. He argues, essentially, that it is legally inconsistent for the jury to have found him guilty of manslaughter for an unlawful killing which occurred during a robbery, so that the robbery verdict must be vacated. We recently determined that a person can be separately convicted for both felony-murder and the robbery which precipitated the murder, and that dual sentences can be imposed on the convictions. Slater v. State, 316 So.2d 539 (Fla.1975).

We acknowledge that the verdicts here are inconsistent, but that fact does not lead to a conclusion that the robbery sentence must be vacated. Under Section 782.04(1)(a), Florida Statutes (1975), McCloud was necessarily guilty of felony-murder. 3 As the trial judge suggested, the jury simply may have found the felony-murder rule too harsh in this situation and reduced the penalty to the lesser-included offense of manslaughter. Since the error was in McCloud's favor, he is in no position to complain of the lesser sentence. 4

(4) The final point on appeal which deserves discussion concerns the testimony of McCloud's friend, Pernell Robinson. Robinson's deposition had been taken well in advance of trial, but as the time of trial approached the prosecutor learned that Robinson was unwilling or unable to recall anything specific regarding the day of the crime. 5 The prosecutor advised the court of this situation and a hearing was conducted outside the presence of the jury to determine whether Robinson would testify to any recollection of the events. Having ascertained that he would not, and at the prosecutor's request, the trial judge called Robinson to the witness stand in front of the jury as the 'court's witness'.

Robinson's testimony remained vague after initial examination by the prosecutor and by defense counsel. The trial judge had the jury removed and extensively questioned Robinson concerning his loss of memory. No justification was elicited which would account for the change of attitude, except perhaps the passage of time. The court's attempts to refresh Robinson's recollections from his earlier deposition were without success. The court then undertook more vigorous questioning which resulted in a comparatively more specific account. After this...

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  • United States v. Seabrooks
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • October 19, 2016
    ...force needed to sustain a robbery conviction under § 812.13(1). Robinson v. State, 692 So.2d 883, 886 (Fla. 1997) ; McCloud v. State, 335 So.2d 257, 258–59 (Fla. 1976) ; Montsdoca v. State, 84 Fla. 82, 93 So. 157, 159 (1922). In 1997, the Florida Supreme Court in Robinson pointed to its own......
  • Stokeling v. United States
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    ...to overcome a victim's resistance." Robinson, 692 So.2d, at 887. But that can mean essentially no force at all. See McCloud v. State, 335 So.2d 257, 258 (Fla.1976) ("Any degree of force suffices to convert larceny into a robbery"); Montsdoca, 84 Fla., at 86, 93 So., at 159 ("The degree of f......
  • State v. Ng
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    • February 18, 1988
    ...and the defendant then argued that the acquittal of the original crime was inconsistent with the conviction. See, e.g., McCloud v. State, 335 So.2d 257 (Fla.1976) (robbery conviction proper although inconsistent with conviction of manslaughter as lesser included offense of felony murder; de......
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    ...of fear are not required to show that the victim had been put in fear; it did not address the issue raised here. In McCloud v. State, 335 So.2d 257 (Fla.), however, it did address this issue and held that force was required to convert larceny to robbery (id., at pp. 258-259). Thus, defendan......
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