Taylor v. State

• Decision Date: 12 November 1992
• Docket Number: No. 79095,79095
• Citation: 608 So.2d 804
• Court: Florida Supreme Court
• Parties: 17 Fla. L. Week. S688 Lawrence TAYLOR, Petitioner, v. STATE of Florida, Respondent.

Page 804

608 So.2d 804

17 Fla. L. Week. S688

Lawrence TAYLOR, Petitioner, v. STATE of Florida, Respondent.

No. 79095.

Supreme Court of Florida.

Nov. 12, 1992.

Nancy A. Daniels, Public Defender and Lynn A. Williams, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen. and Laura Rush, Asst. Atty. Gen., Tallahassee, for respondent.

GRIMES, Justice.

We review Taylor v. State, 589 So.2d 997 (Fla. 1st DCA 1991), because of its conflict with Gould v. State, 577 So.2d 1302 (Fla.1991). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution.

Taylor entered a Baskin-Robbins store in Jacksonville and ordered a cup of ice cream. After the employee, Kimberly Smith, rang up his order, Taylor lifted his shirt and showed her a gun in the waistband of his jeans. He then called over the manager, Christopher Elrod, who was washing dishes in another part of the store, and displayed the gun to him. Following Taylor's order, Elrod took the money out of the cash register and laid it on the counter. Elrod and Smith were then told to go into a back storage room and shut the door. When they came out of the storage room a few minutes later, Taylor and the money were gone.

Taylor was convicted of two counts of armed robbery with a firearm. The district court of appeal reversed the armed robbery conviction of Smith because there had been only one forceful taking. See Brown v. State, 430 So.2d 446 (Fla.1983); Hill v. State, 293 So.2d 79 (Fla. 3d DCA 1974). However, under the authority of section 924.34, Florida Statutes (1989), the court directed the entry of a judgment of conviction for the crime of aggravated assault with a deadly weapon committed against Smith. The court acknowledged that aggravated assault with a deadly weapon was a category-two permissive lesser included offense to armed robbery but concluded that section 924.34 was applicable to both category-one and category-two lesser included offenses.

Contrary to the rationale of the court below, this Court in Gould v. State, 577 So.2d 1302 (Fla.1991), recently held that section 924.34 was inapplicable to category-two permissive lesser included offenses. Notwithstanding, in an effort to support the conviction, the State points to Royal v. State, 490 So.2d 44 (Fla.1986), which held that assault with a deadly weapon was a necessary lesser included offense of armed robbery. Thus, the State argues that while the court below erroneously characterized aggravated assault with a deadly weapon as a permissive lesser included offense of armed robbery, it properly directed entry of the judgment of conviction for aggravated assault under section 924.34.

We explained once again the distinction between category-one necessarily lesser included offenses and category-two permissive lesser included offenses in State v. Weller, 590 So.2d 923 (Fla.1991). We pointed out that when the commission of one offense always results in the commission of another, the latter offense is a category-one necessarily lesser included offense. If the lesser offense has at least one statutory element not contained in the greater, it cannot be a category-one necessarily lesser included offense. However, such a lesser offense may be a category-two permissive lesser included offense if its elements are alleged in the accusatory pleading and proven at the trial.

In State v. Baker, 452 So.2d 927 (Fla.1984), this Court specifically held that aggravated assault with a deadly weapon was not a necessarily lesser included offense of armed robbery because aggravated assault with a deadly weapon contained a...