Royal v. State, s. 82-1050

Citation452 So.2d 1098
Decision Date19 July 1984
Docket NumberNos. 82-1050,82-1055,s. 82-1050
PartiesLinda Gayle ROYAL and William Ellison, Appellants, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant Linda Gayle Royal.

James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant William Ellison.

Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.

En banc.

PER CURIAM.

This criminal case concerns the definition of a "taking" as that term is used in the robbery statutes. Appellants Royal and Ellison were observed in a department store placing clothing in a plastic garbage bag. As appellants proceeded past the cash register and toward the front door a store detective, Ricciardone, attempted to deter them and was pushed aside by Ellison. Appellants left the store and were getting into an automobile outside when the store detective and two other store employees, Morris and Cox, attempted to recover the clothing and to detain appellants. As Morris attempted to grab the ignition key Ellison hit Morris. As Cox was pulling at Ellison in the automobile, Royal produced a pistol and pointed it at Cox's forehead. The three store employees retreated. The ignition key having become bent and useless appellants fled on foot and were apprehended. The pistol was found in the automobile but there was no evidence that it had been carried into the store. Appellants were found guilty of robbery while carrying a deadly weapon and appeal.

Section 812.13(1), Florida Statutes (1981), provides:

"Robbery" means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault or putting in fear.

Appellants urge that the trial court erred in denying a motion for judgment of acquittal because the taking (caption) occurred and the theft of the store merchandise was completed, either (a) when appellants, with intent to steal, first obtained or took the clothing into their actual physical possession, or (b) when appellants, with intent to steal, took the clothing past the cash register or out of the store, and any subsequent force used did not elevate the completed theft into a robbery. Appellants also claim the motion for judgment of acquittal should have been granted because there was no evidence that the appellants, either of them, carried a firearm while in the store or that Ellison ever carried or used a firearm. Therefore, the question presented here is whether the taking was completed without the utilization of any force, assault or fear.

In State v. Douglas, 337 So.2d 407 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 946 (Fla.1977), the manager of the food market saw the defendant grab some pieces of meat and drop them into his co-defendant's shoulder bag. The manager intercepted the two as they attempted to leave the store by the front door and while the three were walking to the rear of the store the defendant struck the manager, and his co-defendant began stabbing the manager. The defendants then ran out the front door. On appeal, the court stated the question was "whether a person who finds it necessary to resort to violence in order to escape with the property of another is chargeable with robbery." The court held that where the owner of property takes action to prevent a thief from taking his goods from his premises and the thief uses force in order to get away with the goods, the thief's use of force is concurrent with the taking and constitutes robbery. The court distinguished that situation from one in which force is used to prevent pursuit after the taking is complete.

In Stufflebean v. State, 436 So.2d 244 (Fla. 3d DCA 1983), the majority stated that whether the offense is a robbery rather than a larceny cannot turn on the fortuitous circumstance that, owing in part to the victim's quick reaction, the taker is required to use force in order to make good his escape with the property before getting outside the building where the property is located. The court in Stufflebean held that pursuant to the robbery statute, "force or threat of force is considered to be contemporaneous with the taking if that force or threat of force is used to overcome a victim's resistance to an attempted asportation." Id. at 245. The court further held that "where an offender gains possession of property of another without force and with intent to deprive the true owner of its use, but the victim gives instant and uninterrupted protest or pursuit in an effort to thwart a taking, and the offender then assaults the victim in order to complete a taking of the property and make good an escape, the offense is robbery." Id. at 246.

Accordingly, we hold that the pushing aside of the store detective by Ellison was, as in Douglas force involved in the taking of the property and that use of the pistol in the automobile occurred concurrent with the taking because possession of the property was still in continuing dispute, as in Stufflebean.

Appellants' convictions are

AFFIRMED.

COBB, C.J., and DAUKSCH, ORFINGER, FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.

COWART, J., dissents with opinion.

COWART, Judge, dissenting:

The majority en banc 1 opinion is in accord with the cases cited but those cases deviate from the true meaning of statutory robbery, section 812.13(1), Florida Statutes (1983), and from common law robbery and cases establishing a clear and meaningful distinction between common law larceny and robbery.

At common law, robbery was defined as "the felonious taking of money or goods of value from the person of another, or in his presence, against his will, by violence, or putting him in fear." Williams v. Mayo, 126 Fla. 871, 172 So. 86, 87 (1937). In construing the robbery statute, it will not be presumed, in the absence of language to the contrary, that the legislature intended to change the nature of the crime as understood at common law. Id. 172 So. at 87. In Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922), the supreme court explained the difference between robbery and larceny:

The criterion which distinguishes these offenses is the violence which precedes the taking. There can be no robbery without violence, and there can be no larceny with it. It is violence that makes robbery an offense of greater atrocity than larceny. Robbery may thus be said to be a compound larceny composed of the crime of larceny from the person with the aggravation of force, actual or constructive, used in the taking. 29 R.C.L. 1140; 34 Cyc. 1796.

An intent to steal is essential, so is violence or putting in fear. See 34 Cyc. 1799. The violence or intimidation must precede or be contemporaneous with the taking of the property. See Colbey v. State, 46 Fla. 112, 35 South. 189, 110 Am.St.Rep. 87.

The degree of force used is immaterial. All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim's resistance.

93 So. at 159. See also McCloud v. State, 335 So.2d 257 (Fla.1976).

The taking or caption, which is an essential element of common law larceny, meant only that the accused must acquire dominion over the property, a complete and independent possession superseding the possession of the owner, but actual possession for a momentary time was sufficient. 2 At common law, while the property must not only have been taken but must also have been carried away, 3 this element of carrying away or asportation was for the purpose of showing the complete termination of the owner's possession and the actual possession of the property by the wrongdoer 4 and was satisfied by the slightest removal, 5 it being stated that even "a hair's breadth will do." 6 To complete a larceny it was not necessary that the property be removed from the presence of the owner or from his premises. In Johnson v. State, 432 So.2d 758 (Fla. 1st DCA 1983), the court observed that the taking involved in robbery is basically equivalent to the asportation element of common law larceny and that the asportation required for the crime of larceny may be completed by the slightest removal of the article from its original position or place where the owner placed it or wanted it to be. The court observed that its holding was consistent with the general law on the subject:

In order to constitute robbery there must be a taking or asportation. In other words, it must appear that the property was taken from the possession of the victim into that of the robber. However, the crime is consummated when the robber acquires possession of the property, even if for a short time, and it is not necessary that the property be taken into the hands of the robber, or that he should have actually carried the property away, out of the physical presence of the lawful possessor, or that he should have made his escape with it. Further, the distance the property is taken may be very small, the slightest change of location whereby dominion of the property is transferred to the offender being sufficient to establish asportation.

432 So.2d at 759, quoting from 77 C.J.S. Robbery § 3.

Contrarily, the majority opinion holds that the taking in the instant case was ongoing even after the appellants had left the store and were in the parking lot, reasoning that the possession of the property was in "continuing dispute." Compare the statutory definition of "retail theft" in section 812.015(1)(d), Florida Statutes (1981), which certainly does not require that merchandise, the possession of which has been acquired (taken) with the wrongful intent to deprive, be removed from the store. See also, Haslem v. State, 391 So.2d 389 (Fla. 2d DCA 1980), which recognizes that when coupled with the essential intent to steal (animus furandi) a movement (asportation) of goods within a self-service...

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4 cases
  • Foster v. State, 90-1297
    • United States
    • Court of Appeal of Florida (US)
    • March 6, 1992
    ......State, 84 Fla. 82, 93 So. 157 (1922); and much more recently in Royal v. State, 490 So.2d 44 (Fla.1986), quashing 452 So.2d 1098 (Fla. 5th DCA 1984). See also, Milam v. State, 505 So.2d 34 (Fla. 5th DCA 1987); ......
  • Akins v. State, 83-743
    • United States
    • Court of Appeal of Florida (US)
    • December 6, 1984
    ...5th DCA 1984).9 The threat of the early day English highway robber was succinct: "Your money or your life!"10 Cf. Royal and Ellison v. State, 452 So.2d 1098 (Fla. 5th DCA 1984).11 The analytical problem of comparing an attempted armed robbery with an aggravated assault must be contrasted wi......
  • Snead v. State, 4-86-0686
    • United States
    • Court of Appeal of Florida (US)
    • February 11, 1987
    ...that actual violence in aid of escape are but components of a robbery. Ben v. State, 461 So.2d 286 (Fla. 2d DCA 1985); Royal v. State, 452 So.2d 1098 (Fla. 5th DCA 1984); Stufflebean v. State, 436 So.2d 244 (Fla. 3d DCA 1983); State v. Douglas, 337 So.2d 407 (Fla. 1st DCA 1976). That being ......
  • Ben v. State, 84-583
    • United States
    • Court of Appeal of Florida (US)
    • January 4, 1985
    ...of Section 812.13, supra, we think, is precisely what the legislature intended. Id. at 245-246. See also Royal v. State, 452 So.2d 1098, 1100 (Fla. 5th DCA 1984) (en banc). We add that it seems to us a bit strained to differentiate between an appropriation before, as opposed to after, the o......

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