Stufflebean v. State

Decision Date12 July 1983
Docket NumberNo. 81-2250,81-2250
Citation436 So.2d 244
PartiesThomas STUFFLEBEAN, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bennett H. Brummer, Public Defender, and Stuart Gitlitz, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.

Before NESBITT, BASKIN and FERGUSON, JJ.

FERGUSON, Judge.

Appellant presents two issues by this appeal. The first issue is whether a question asked by the prosecutor during voir dire examination constituted an improper comment on the defendant's right to remain silent. On this point no reversible error is shown. Gosney v. State, 382 So.2d 838 (Fla. 5th DCA 1980).

The second question--whether violence or intimidation must precede or be contemporaneous with a taking of property in order for there to be a robbery--merits discussion because there appears to be no Florida case which generally defines contemporaneous violence.

At a jury trial the state's evidence of the pertinent facts consisted of the following. The victim, John Campbell, was painting in Bayfront Park with a cassette radio beside him. The appellant and a companion took the radio and fled with Campbell in pursuit. After a chase of one to two minutes Campbell caught up with the two. Appellant produced a knife and Campbell backed away. There followed a "discussion" during which Campbell demanded the return of the radio, which demand was refused by appellant. Appellant and his companion walked away. Campbell was frustrated in his attempt to continue the pursuit by automobile.

At the conclusion of the state's case, appellant moved for a judgment of acquittal on the ground that "the state had failed to prove the crime of robbery in that they had failed to prove that the taking in the instant case was accomplished through the use of force." 1

Appellant urges that State v. Douglas, 337 So.2d 407 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 946 (Fla.1977), relied upon by the state, actually supports his position.

In Douglas, the manager of a food market intercepted the defendants, one of whom he had seen drop merchandise into a shoulder bag as they attempted to exit the store. At the manager's request the defendants agreed to walk to the rear of the store with him. As they proceeded to the rear of the store the defendants suddenly assaulted the manager then ran out of the store with the goods. The court made a point of the fact that the taking of the meat would not have been complete until the defendants got out of the store. The Douglas court phrased the question before it as "whether a person who finds it necessary to resort to violence in order to escape with the property of another is chargeable with robbery." 337 So.2d at 408. The question was answered affirmatively, but the decision limited its application to the facts presented, distinguishing the case from a situation where force is used to prevent pursuit after the taking--precisely the situation presented by this case.

We agree with the issue as framed and decided by the Douglas court but see no reason why the decision should be limited to the peculiar facts of that case. Whether the offense is a robbery rather than a larceny should not 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 (which might also suggest, unreasonably, that the offense could not have been committed in an outdoor market).

The state's position, that a robbery occurred because an assault was committed by defendant to prevent the victim's further pursuit after the taking, is clearly supported by Section 812.13(3), Florida Statutes (1981) 2 which provides that: "[a]n 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." [e.s.]. Section 812.13(3) changes the common law rule that in order for there to be a robbery, violence or intimidation must precede or be contemporaneous with the taking of property, and may not be used only in an effort to escape, Colbey v. State, 46 Fla. 112, 35 So. 189 (1903). Pursuant to the new 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. 3

Our view of this case is supported by considerable authority. See People v. Anderson, 64 Cal.2d 633, 51 Cal.Rptr. 238, 414 P.2d 366 (1966) (if one who has stolen property from the person of another uses force or fear in removing the property from the owner's immediate presence, the crime of robbery has been committed); People v. Kennedy, 10 Ill.App.3d 519, 294 N.E.2d 788 (App.Ct.1973) (while the taking may be without force the offense is robbery if the departure with the property is accomplished by use of force); People v. Sanders, 28 Mich.App. 274, 184 N.W.2d 269 (Ct.App.1970) (woman who saw defendant run from her house with her purse and bag of money called for help; her grandson, who pursued defendant, gave up chase when defendant fired a gun); Hermann v. State, 239 Miss. 523, 123 So.2d 846 (1960) (defendants asked service station to fill up gas tank, then displayed a rifle in a threatening manner and drove away without paying); State v. Bell, 194 Neb. 554, 233 N.W.2d 920 (1975) (defendant took cash register from service station while attendant's back was turned, threw it into automobile and attempted to drive off; pursuing attendant stuck his hand through automobile window and was struck and pushed from moving vehicle). Three other states, Oregon, 4 Maine 5 and New York, 6 have enacted statutes similar to the Florida statute which define as an act of robbery, the use of force to unlawfully retain property after a taking.

We hold 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. This construction of Section 812.13, supra, we think, is precisely what the legislature intended.

Affirmed.

BASKIN, Judge, dissenting in part.

I disagree with the majority holding that the theft of property constitutes robbery even though the perpetrator used no force or intimidation to gain possession. The majority is disdainful of and declines to follow existing Florida law requiring that precedent or contemporaneous force or fear be established to prove the crime of robbery. See e.g., McCloud v. State, 335 So.2d 257 (Fla.1976); Montsdoca v. State, 84 Fla. 82 93 So. 157 (1922); E.Y. v. State, 390 So.2d 776 (Fla. 3d DCA 1980) (Baskin, J., dissenting); Mims v. State, 342 So.2d 116 (Fla. 3d DCA 1977). We are, nevertheless, required to apply Florida law. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

The principle enunciated in COLBEY V. STATE , 46 FLA. 112, 35 SO. 189 (1903)* controls. In Colbey, the defendant, caught with his hand in his victim's pocket, struggled in an effort to escape. Overturning Colbey's attempted robbery conviction, the court stated:

If the defendant struggled or clinched with Bousman in an effort to overpower him for the purpose of enabling him to secure the money in the pocket, there would be such force as the statute contemplates, but the force used merely in an effort to escape from the grasp of [the victim] or to avoid arrest would not be such force as is contemplated by the statute.

46 Fla. at 114, 35 So. at 190. Similarly, in the case under consideration, defendant Stufflebean gained possession of the radio without using any "force, violence, assault or putting in fear."

The Colbey court noted:

Where one stealthily filches loose property from the pocket of another and no more force is used than such as may be necessary to remove the property from the pocket, it is not robbery under the statute, but larceny.

46 Fla. at 114, 35 So. at 190. Accordingly, taking a radio with no more force than is necessary to remove it from the bench constitutes larceny, not robbery.

Florida applies the generally accepted rule on the use of force to effect an escape.

The violence or intimidation must precede or be concomitant or contemporaneous with the taking. Hence, although the cases are not without conflict, the general rule does not permit a charge of robbery to be sustained merely by a showing of retention of property, or an attempt to escape, by force or putting in fear. The above doctrine has found frequent application where force or intimidation has been exercised after the property came into the defendant's hands through stealth ....

67 Am.Jur.2d, Robbery, § 26 (1973). Thus, "subsequent force cannot relate back to the act of taking so as to be considered force accompanying the act, ... violence or intimidation subsequent to a taking by other means will not render the act robbery." 77 C.J.S., Robbery, § 11 (1952).

The majority's interpretation of section 812.113(3) is misguided. The definition of robbery has not been changed by the legislature. An examination of the title of a bill offers guidance in the determination of legislative intent. Parker v. State, 406 So.2d 1089 (Fla.1981). The title of the robbery statute, Chapter 74-383, Laws of Florida, describes the law as "An Act relating to the criminal law ... defining the crimes of and providing the penalties for robbery ...." The common law definition of robbery, set forth in subsection (1) of section 812.13, has remained...

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10 cases
  • Royal v. State, s. 82-1050
    • United States
    • Court of Appeal of Florida (US)
    • July 19, 1984
    ...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......
  • S.W. v. State
    • United States
    • Court of Appeal of Florida (US)
    • October 6, 1987
    ...no more force or violence is used than is necessary to remove the property from a person who does not resist." Stufflebean v. State, 436 So.2d 244, 246 n. 3 (Fla. 3d DCA 1983), disapproved on other grounds, Royal v. State, 490 So.2d 44 LaFave and Scott, in their standard work on criminal la......
  • Snead v. State, 4-86-0686
    • United States
    • Court of Appeal of Florida (US)
    • February 11, 1987
    ...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 so, the mere threat of violence can hardly constitute a s......
  • R.P. v. State, 83-2696
    • United States
    • Court of Appeal of Florida (US)
    • November 5, 1985
    ...resist. Mims v. State, 342 So.2d 116 (Fla. 3d DCA 1977); Adams v. State, 295 So.2d 114 (Fla. 2d DCA 1974); see Stufflebean v. State, 436 So.2d 244, 246 n. 3 (Fla. 3d DCA 1983). The record reveals no evidence to support the adjudication of delinquency based on We reject R.P.'s contention tha......
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