Stuckey v. State
| Decision Date | 07 December 2007 |
| Docket Number | No. 5D06-3630.,5D06-3630. |
| Citation | 972 So.2d 918 |
| Parties | Stephan Kent STUCKEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Raymond M. Warren, of Warren & Warren, P.A., Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant
Attorney General, Daytona Beach, for Appellee.
Stephan Kent Stuckey ["Defendant"] appeals the judgment and sentence he received for the offense of robbery. He raises several issues, only one of which has merit. We agree that the trial court erred in instructing the jury and that reversal is required.
On January 20, 2004, Defendant and Austin Donald McElroy were observed in a Sam's Club store, concealing DVDs in the waistband of their pants. Immediately upon exiting the store, Defendant and McElroy were confronted by Sam's Club employees. Defendant struggled with the employees who apprehended him.
On March 17, 2004, the State charged Defendant with robbery, a second-degree felony.1 Defendant was initially tried and convicted of the charged offense in 2004, and sentenced to thirty years' imprisonment as a violent career criminal and prison releasee reoffender. On appeal, this Court reversed, concluding that the trial court erred by refusing to instruct the jury on the lesser offense of resisting a merchant. We remanded for a new trial. Stuckey v. State, 907 So.2d 1208 (Fla. 5th DCA 2005).
Defendant was tried again in 2006. Three witnesses were presented. Christopher Meade, a Sam's Club loss prevention officer, testified that he was walking through the store when he observed Defendant and McElroy with a number of DVDs in their cart. Meade followed Defendant and McElroy to an area of the store that was without surveillance cameras. He observed Defendant and McElroy take the DVDs from the cart and stuff them into their pants. Meade radioed the store manager, Mike Clinard. Meade asked Clinard to gather another store employee and meet him outside.
Meade then watched Defendant and McElroy as they proceeded past the registers, past the inner exit doors, and ultimately past the outer exit doors. While Clinard and another store employee, Bobby Becker, went after McElroy, Meade confronted Defendant. Meade identified himself and placed his hand on Defendant's abdomen to let him know that he knew there was merchandise there. At that point, Defendant swung his arm back as if to hit him, and fled. With the assistance of Becker, Meade took Defendant to the ground and handcuffed him. During the struggle several DVD's fell to the ground.
Becker was the second witness called. He testified that he observed Defendant and. McElroy head for the store's exit, pass the cash registers, and go through both an inner and outer set of exit doors. He saw Meade confront Defendant, and consistent with Meade's testimony, he confirmed that a struggle ensued between Meade and Defendant. Becker grabbed Defendant's kicking legs in an effort to help secure him. He also noticed DVDs on the ground during the course of the events.
Finally, Clinard testified that he first saw Defendant and McElroy when they were coming out of the store. He also confirmed that Defendant had struggled with Meade, and that Becker had intervened to help Meade restrain Defendant. He saw Defendant flailing his arms, kicking, and trying to escape. He also saw DVDs fall out of Defendant's clothing.
During closing arguments, Defendant asserted that "robbery requires the intent to take by force" and suggested that Defendant lacked that intent at the time he resisted. Rather, Defendant asserted that the theft was complete and his intent in resisting the merchant was to escape, not to maintain possession of the stolen merchandise. Accordingly, he argued that he committed two separate crimes that day: resisting a merchant and petit theft, but not robbery.
The trial court instructed the jury, over objection, that it could convict Defendant of robbery or one of the lesser offenses of resisting a merchant, battery, or petit theft. During deliberations, the trial court received a note from the jury asking whether they could pick more than one of the lesser offenses. The trial court answered "no" over Defendant's objection. Defendant argued:
The position that the Defense is taking is yes. The reason, for that is these are mutually exclusive charges and hypothetically each of the elements are satisfied and there is no one charge that is greater than the other on that, and there is nothing in the instruction that says they can't.
The jury subsequently rendered a verdict finding Defendant Defendant filed a motion for a new trial based on the trial court's instruction to the jury that it Could find Defendant guilty of only one of the lesser offenses listed on the verdict form. The trial court heard arguments on this motion, and the trial court denied the motion for a new trial. Defendant was again sentenced to thirty years' imprisonment.
On appeal, Defendant argues that he was entitled to have the jury instructed that it was allowed to mark more than one choice among the lesser included offenses listed on the verdict form, consistent with his theory of defense that he had committed the crimes of petit theft and resisting a merchant, but not robbery. He argues that he "is entitled to have the jury consider the option of convicting him of both lesser included offenses," sufficient record evidence existed to support those charges, "and the Information filed by the State allege[d] facts sufficient to include the lesser offenses. . . ." Finally, Defendant argues that by denying his request that the jury be permitted to consider the two lesser included offenses of petit theft and resisting a merchant, the trial judge denied his right to have a jury exercise its pardon power.
The State's essential position is that "[a]s a general rule, permitting a jury to find a defendant guilty of two lesser offenses does not comport with Florida law." Further, it argues that case law allowing a jury to convict of both of the component offenses making up a charged "compound offense" is distinguishable because "the crime of robbery is not a legislative creation compounding two offenses into one."
The general rule is that, when a defendant is charged with an offense and tried for it, the jury may convict him of "any offense that as a matter of law is a necessarily included offense or is a lesser included offense" and "is supported by the evidence." Fla. R.Crim. P. Rule 3.510 (2006); see Stuckey, 907 So.2d at 1212 (), review denied, 925 So.2d 1031 (Fla.2006). It is a matter of common understanding that the charge of a single offense will give rise to the possibility of a conviction of a lesser offense whose elements are included in the greater, charged offense. When referencing lesser included offenses, the jury instructions2 and rules of criminal procedure3 speak in the singular.
It appears that the basis for the general rule that a defendant cannot be convicted of two lesser included offenses under a single charge lies in considerations of double jeopardy. See Bledsoe v. State, 764 So.2d 927, 928-29 (Fla. 2d DCA 2000); Rhames v. State, 473 So.2d 724, 727 (Fla. 1st DCA 1985). In Bell v. State, 437 So.2d 1057, 1061 (Fla.1983), the Florida Supreme Court said that a jury can convict a defendant of one or more of the lesser included offenses; it is only prohibited from convicting of the greater offense and a lesser offense. That concern is not present in this case, however.
With respect to robbery,4 petit theft is a necessarily lesser included offense and resisting a merchant5 is a permissive lesser offense. See J.C.B. v. State, 512 So.2d 1073, 1074 (Fla. 1st DCA 1987); Stuckey, 907 So.2d at 1212. An element of the resisting a merchant offense is that the proscribed resistance to reasonable efforts of the merchant to recover the merchandise occurs "while" or "after" the defendant commits a theft of the merchant's property. See § 812.015(6), Fla. Stat. (2004); see also Lane v. State, 867 So.2d 539, 541 (Fla. 1st DCA 2004). Both the statute governing the resisting a merchant offense and the case law make clear that a defendant can be prosecuted and convicted of both resisting a merchant and the associated petit theft offense without offending double jeopardy. See § 812.015(6), Fla. Stat. (2004); Stuckey.
A compound offense exists when "two lesser offenses are merged factually and in legal contemplation into the one greater offense." Foster v. State, 596 So.2d 1099, 1104 n. 6 (Fla. 5th DCA 1992) (Cowart, J., dissenting). The body of case law relating to compound offenses provides that when a defendant is tried for a compound offense, he is entitled to have the jury consider convicting him of both of the "separate component offenses" that make up the compound offense. Gian-Grasso v. State, 899 So.2d 392, 393 (Fla. 4th DCA 2005). In Gian-Grasso for example, the Fourth District noted that burglary with battery is a legislative combination of trespass and battery. Id. The court explained:
Where a defendant is charged with burglary, a jury could find that the defendant had no criminal intent upon entering but subsequently formed the intent to commit an offense, such as, in this case, battery. In this situation, the defendant has committed a trespass and a battery but not a burglary. A defendant is entitled to have the jury determine when the intent was formed and consider the alternative of convicting of both component offenses, rather than burglary or just one of the component offenses.
Id; see also Bledsoe, 764 So.2d at 929 (...
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