Williams v. State, 86-1181

• Decision Date: 05 November 1987
• Docket Number: No. 86-1181,86-1181
• Citation: 12 Fla. L. Weekly 2531,516 So.2d 975
• Parties: 12 Fla. L. Weekly 2531, 12 Fla. L. Weekly 790 Ernest James WILLIAMS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 975

516 So.2d 975

12 Fla. L. Weekly 2531, 12 Fla. L. Weekly 790

Ernest James WILLIAMS, Appellant, v. STATE of Florida, Appellee.

No. 86-1181.

District Court of Appeal of Florida,

Fifth District.

Nov. 5, 1987.

Rehearing Denied Dec. 17, 1987.

James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.

ON MOTION FOR REHEARING, REHEARING EN BANC AND/OR REQUEST FOR CERTIFICATION

COWART, Judge.

To maintain uniformity in this court's decisions, a majority of the judges of this court grant the defendant's motion for rehearing en banc, Florida Rule of Appellate Procedure 9.331(c), withdraw the prior opinion in this case, and concur in the following opinion.

Without any force or threat to the custodian, a thief grabbed money from a store cash register and ran from the store to the parking lot and a waiting car driven by the defendant Williams. A pursuing store security guard, C.J. Crawford, was knocked to the ground when she struggled to prevent the thief from entering the passenger side of the car. The defendant and thief drove off. The defendant was later apprehended and charged with conspiracy, robbery, and fleeing and eluding a police officer. The robbery count charged the accused with taking by force money from Virginia Willis who was the store's employee in charge of the cash register. Defense counsel made a motion for judgment of acquittal and renewed it at the close of all the evidence in the case pursuant to Florida Rule of Criminal Procedure 3.380(a) and (b) but argued only that the evidence was insufficient to show that the defendant had any knowledge that the thief was going to commit the theft before it was committed or that the defendant knowingly participated in the theft. The jury found the defendant not guilty of the conspiracy charge but guilty of the robbery and fleeing and eluding charges.

On appeal the defendant argues that because the thief used no force in taking the money from the store cash register, the defendant's conviction for robbery should be reversed under Royal v. State, 490 So.2d 44 (Fla.1986).

The State argues that the defendant is barred by the contemporaneous objection rule from arguing Royal on appeal because the defendant, on his motion for judgment of acquittal, argued only the lack of evidence as to the defendant's knowledge of, and intent to participate in, the commission of the theft by the thief and did not argue the Royal point that no force was used by the thief in the taking of the money from the cash register and that the force on the security guard at the car in the parking lot was not used to accomplish the taking of the money.

As was indicated by the Florida Supreme Court in State v. Rhoden, 448 So.2d 1013 (Fla.1984), which disapproved the application of the contemporaneous objection rule to sentencing errors, the real purpose of the contemporaneous objection rule applies during a jury trial to assure correct rulings by the trial court on questions relating to the admissibility of evidence and instructions of law to the jury because judicial errors in those instances cannot be effectively corrected after the jury renders a verdict and is discharged and dissolved. There is no need to apply the rule strictly to pure rulings of law which can be corrected independent of a jury verdict, such as in this case.

The State relies on language from the case of Tillman v. State, 471 So.2d 32 (Fla.1985), for the proposition that a specific legal argument or ground must be presented to the lower court to preserve it for review by a higher court. In Tillman, the question certified to the supreme court was whether there was such an offense as attempted manslaughter under Florida law. The supreme court did three things. First, it held that there was a crime of attempted manslaughter but that such offense required proof of a certain degree of criminal intent. Secondly, the court then addressed the defendant's contention that the evidence did not support a finding that the defendant had the requisite degree of criminal intent. Thirdly, the court stated that

In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.

Tillman v. State, 471 So.2d 32, 35 (Fla.1985). After making that statement, the supreme court reviewed the record and found that the evidence was sufficient to support the conclusion that the defendant's act had been done with the requisite criminal intent. At least one of these three holdings was not essential to the decision in Tillman. Notwithstanding the language quoted above, we do not believe that the supreme court would have denied Tillman relief and left him in prison under a conviction for a nonexistent crime, or for a crime which the record affirmatively shows him to be not guilty, if the supreme court had also held that there was no such offense as attempted manslaughter, or if it had also found from the record that Tillman did not have the requisite criminal intent.

Since the supreme court decided Royal, this issue has reappeared in several cases before the Fifth District Court of Appeal. Hogan v. State, 493 So.2d 84 (Fla. 5th DCA 1986), set aside a robbery conviction based on Royal. In Flarity v. State, 499 So.2d 18 (Fla. 5th DCA 1986), the defendant pumped gasoline into his car at a self-service station. Thereafter the station attendant was forced off the side of the car as he attempted to prevent the thief from driving away without paying. Based on Royal, Flarity's robbery conviction was reversed because the violence occurred after the taking. Next, in J.B.H. v. State, 11 F.L.W. 2099 (Fla. 5th DCA Oct. 2, 1986), based on Royal, the panel first reversed a juvenile conviction because the force or violence was used by the thief to retain goods already taken without force. On rehearing the panel switched its position and upheld the conviction based on the failure of the appellant to contest the sufficiency of the evidence at any point in the proceeding below. J.B.H. v. State, 498 So.2d 613 (Fla. 5th DCA 1986).

Several months before this case was tried, the trial judge in this case, who was also the trial judge in Flarity v. State, supra, rejected an excellent argument of private defense counsel to the effect that the force in Flarity occurred after Flarity's theft of gasoline. Why? Because the en banc decision in Royal v. State, 452 So.2d 1098 (Fla. 5th DCA 1984), to the effect that the force necessary in robbery could occur after the thief had acquired actual possession of the stolen property, had been published for almost two years at that time and the trial judge was legally bound to follow the decision in the Fifth District Court of Appeal Royal case and to reject all arguments to the effect that that decision was erroneous and should not be followed. Williams' wrongful conviction in this case, like Flarity's conviction, did not result from any error of defense counsel or of the trial judge. The denial of Williams' motion for judgment of acquittal was mandated by our opinion in Royal whether or not defense counsel argued that point. To require the trial defense counsel in this case to argue to the trial judge to grant a motion for judgment of acquittal because the force involved occurred after the taking was completed would be to require the defense counsel to do a most futile and useless act.

The problem in this case does not really involve the sufficiency of the evidence. The facts are totally insufficient to support a conviction of robbery because without question, under the law and the uncontested facts, no robbery occurred. It would be grossly unjust to reject Williams' appeal and affirm his wrongful conviction of robbery and keep him in prison for a crime that never occurred because of our decision in Royal, which was later reversed by the supreme court.

The State argues that the defendant's robbery conviction should be affirmed on this appeal and that the defendant can institute a 3.850 motion predicated on the ineffective assistance of his counsel as evidenced by his counsel's failure to argue on his motion for judgment of acquittal that there was no evidence that the thief used force in taking money from the store's cash register. The defendant in this case is entitled to immediate relief from a wrongful conviction which should not be made to depend on his ability to prove that his trial counsel was incompetent and ineffective. In such a post-conviction proceeding, trial defense counsel has an excellent argument that he was not ineffective or incompetent merely because he did not urge the trial judge in this case to hold contrary to the binding en banc decision of this court in Royal. As to the right on appeal to relief from an improper conviction, there is no substantive difference between Flarity, whose retained defense counsel made a proper motion and a good argument which were properly overruled and rejected by the trial judge, and Williams, whose appointed defense counsel made a proper motion but an insufficient argument, when a good argument would have been properly rejected by the trial judge. If a defendant himself cannot by express agreement confer authority on a trial court to impose an illegal sentence that cannot be corrected on appeal, see Williams v. State, 500 So.2d 501 (Fla.1986), why should a defense counsel be able to confer, by oversight, ignorance, neglect, or insufficient argument, authority on a trial court to impose an illegal conviction that cannot be corrected on appeal?

The substance in this case is: Did a robbery occur? Did the defendant do it or did he aid the robber? The answer to both questions is "no." Elementary justice in criminal cases...