Perkins v. State, 4D01-767.
| Decision Date | 17 April 2002 |
| Docket Number | No. 4D01-767.,4D01-767. |
| Citation | 814 So.2d 1177 |
| Parties | Floyd S. PERKINS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Sophia Letts, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
Appellant was convicted of first degree murder based on evidence which would have supported the separate charges of premeditated or felony murder. The underlying felony for the felony murder charge was robbery. He contends that the court erred in not instructing the jury that, if the taking of the victim's property was an afterthought, and not the motivation for the use of force, there was no robbery. If the court had given the instruction, the jury, he argues, could have found that there was no felony and thus no felony murder. We agree and reverse for a new trial.
Although there was ample evidence that this was first degree murder, either premeditated or felony murder, appellant testified to a different version of events. He related that the victim had invited him to his home for drinks after they met in a bar. After having drinks in the victim's home, appellant went to sleep in the spare bedroom and was later awakened to find the naked victim on top of him holding a knife to his face. Appellant testified that a struggle ensued in which he accidentally stabbed the victim. Although he subsequently left with some of the victim's possessions, he claimed that he had never intended to rob the victim and had only stabbed him in self-defense.
One of the differences between a robbery and a theft is that in a robbery, "in the course of the taking there is the use of force, violence, assault, or putting in fear." § 812.13(1), Fla. Stat. (2001). If the force or violence is motivated by a reason other than to rob the victim, then the taking of the property would not constitute a robbery.
In Mahn v. State, 714 So.2d 391 (Fla. 1998), defendant had been convicted of first degree murder and armed robbery, and argued that there was insufficient evidence to show that he had committed a robbery. The evidence showed that, after he stabbed his father's girlfriend and her son, he took the girlfriend's car and money in order to escape. Our supreme court concluded that there was insufficient evidence to support a conviction for robbery, because the evidence was all to the effect that the murder was the result of defendant's emotional disturbances involving his relationship with his father and the girlfriend. The taking of the property was an afterthought.
In the present case appellant, citing Mahn, requested that the court instruct the jury that the elements of first degree felony murder were:
A similar instruction was given in Perry v. State, 801 So.2d 78, 89 (Fla.2001):
If the evidence shows that the defendant took the victim's property to effect his escape, but that the taking of the victim's property was an afterthought to the use of force or violence which resulted in the death of the victim, the taking of the victim's property does not constitute robbery, but may constitute theft.
See also Beasley v. State, 774 So.2d 649,...
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...Whatley relies of Perkins v. State, 814 So.2d 1177, 1179 (Fla. App. 2002), which is easily distinguishable from the facts of this case. In Perkins, the force or violence used by the was motivated for a reason other than to rob the victim. Here, Whatley used force (strangulation and/or runni......
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Burns v. State
...resulted in the death of the victim, the taking does not constitute robbery, but may still constitute theft”); Perkins v. State, 814 So.2d 1177, 1178 (Fla. 4th DCA 2002) (“If the force or violence is motivated by a reason other than to rob the victim, then the taking of the property would n......
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Gordon v. State
...DCA 2015) ; DeJesus v. State , 98 So.3d 105 (Fla. 2d DCA 2012) ; Davis v. State , 922 So.2d 438 (Fla. 5th DCA 2006) ; Perkins v. State , 814 So.2d 1177 (Fla. 4th DCA 2002).However, as can be seen from these cases and from the notes accompanying the standard afterthought instruction, such an......
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The trial (conduct of trial, jury instructions, verdict)
...as to robbery is inadequate to explain taking property as an afterthought. (Agreeing with Fourth and Fifth DCA in Perkins v. State , 814 So. 2d 1177 (Fla. 4th DCA 2002) and Davis v. State , 922 So. 2d 438 (Fla. 5th DCA 2006), respectively.) DeJesus v. State, 98 So. 3d 105 (Fla. 2d DCA 2012)......