Rumph v. State

• Decision Date: 15 June 1989
• Docket Number: No. 88-1162,88-1162
• Citation: 14 Fla. L. Weekly 1451,544 So. 2d 1150
• Parties: 14 Fla. L. Weekly 1451 Larry RUMPH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1150

544 So.2d 1150

14 Fla. L. Weekly 1451

Larry RUMPH, Appellant, v.STATE of Florida, Appellee.

No. 88-1162.

District Court of Appeal of Florida Fifth District.

June 15, 1989.

James B. Gibson, Public Defender, and Barbara C. Davis, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Laura Griffin, Asst. Atty. Gen., Daytona Beach, for appellee.

GOSHORN, Judge.

Appellant, Larry Rumph was convicted of robbery, resisting an officer with violence and resisting an officer without violence.He appeals his conviction for robbery and resisting arrest without violence.He also contends the trial court erred by assessing points under the uniform sentencing guidelines for victim injury occasioned by the robbery.

On November 2, 1987the appellant was observed shoplifting two pairs of jeans by employees of Denim World.As appellant was leaving, the assistant manager, Andrita King, approached him and said, "Sir, I think you have something that belongs to us."Appellant responded, "No I don't", pushing Ms. King out of the way as he bolted through the front door.As Ms. King was shoved out of the way, she hit her shoulder on the door.

David Velez, another employee at Denim World, chased the appellant into the parking lot and took down the license plate number of appellant's car as appellant sped away.A BOLO was broadcast for the appellant, and Chris Rumbaugh, a deputy, located appellant's car.At trial, Deputy Rumbaugh testified that he had appellant place his hands on the officer's car in order to initiate a pat down.At this point, appellant swung around, hit the deputy in the chest, and ran.The deputy pursued, and after about fifteen yards managed to trip appellant.As appellant tried to get up, he swung twice at the deputy.The appellant then knocked the deputy off of his feet.When appellant was finally subdued, Deputy Rumbaugh asked him his name.Appellant gave the name of James Wilder.Deputy Rumbaugh found the jeans in appellant's car, and returned appellant to Denim World where he was identified by the store's witnessing employees.It was not until the next day that the deputy learned of appellant's real name.

Appellant first contends that he cannot be convicted of robbery where the taking was completed before any force was used.Robbery is defined by § 812.13(1), Florida Statutes(1985) as:

...the taking of money or other property which may be the subject of larceny from the person or custody of another when in the course of the taking there is the use of force, violence, assault, or putting in fear.

Effective October 1, 1987, the legislature amended the statute and added (3)(a) providing:

An act shall be deemed "in the course of committing the robbery" if it occurs in an attempt to commit robbery or in flight after the attempt or commission.(emphasis added)

It is clear that this amendment was intended to supersede the Florida Supreme Court decision of Royal v. State, 490 So.2d 44(Fla.1986).Royal held that to constitute robbery, force must be used prior to or while the taking is in progress.See also, State v. Baker, 540 So.2d 847(Fla. 3d DCA1989)(the legislature's clear intent was to repeal Royal );Williams v. State, 516 So.2d 975(Fla. 5th DCA1987)rev. denied, 525 So.2d 881(Fla.1988)(Judge Cobb's dissent at ftnt.2).Appellant's use of force to shove Ms. King out of his way and into the door as he fled with the jeans constitutes the use of force in flight after the taking and provides the evidence to sustain appellant's conviction for robbery.

Next, relying on Z.P. v. State, 440 So.2d 601(Fla. 3d DCA1983), appellant argues that the conduct charged, i.e. giving a false name to the officer, occurred at a point in time after he had been arrested, handcuffed, and placed in the back of a police vehicle and thus could not constitute the crime of resisting arrest without violence.This position has no merit.

We agree with the second district that § 843.02 Florida Statutes¹ has a much broader scope than merely resisting arrest.The statute also contemplates obstruction or opposition to any officer in the lawful execution of any legal duty.Caines v. State, 500 So.2d 728(Fla. 2d DCA1987).Clearly the giving of a false name obstructs the officer in the preparation of the arrest reports he is required to complete.We are, of course, aware of this court's decision in Steele v. State, 537 So.2d 711(Fla. 5th DCA1989) and find no conflict.In Steele, the officer was not engaged in the performance of a lawful duty.Here the officer was clearly engaged in a lawful arrest of the defendant for robbery.

Rumph next asserts as error the scoring of 14 points for victim injury under the uniform guidelines scoresheet because it is not an element of the offense of robbery.We disagree.Florida Rule of Criminal Procedure 3.701(d)(7) provides:

Victim injury shall be scored for each victim physically injured during a criminal episode or transaction.

The court-made...