BENJAMIN M. BURLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Burley, a 17-year-old, appeals his robbery conviction, challenging the trial court's denial of a jury instruction regarding pocket-picking and purse-snatching and claiming the court imposed adult sanctions without following statutory procedures. The appellate court affirmed the conviction and sentence, finding the jury instructions adequate and the procedural challenge waived.
The requested jury instruction was appropriately denied because the evidence showed the victim resisted and was apprehensive. The trial court's standard instructions adequately addressed the requirement of resistance in the context of force and fear. The claim regarding improper imposition of adult sanctions was not preserved for appeal because the issue was never presented to the trial court.
[1] A jury instruction on robbery is inappropriate if the victim's testimony indicates resistance occurred and the victim experienced apprehension.
[2] A jury instruction on robbery adequately covers the requirement of resistance when it explains that resistance can be overcome by force or violence, or by putting the vic…
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Join FLexlaw to unlock all legal intelligence“This instruction was inappropriate because the victim's testimony indicated that resistance occurred during the incident and there was apprehension on the part of the victim.”
Explanation for denying the requested jury instruction on pocket-picking and purse-snatching.
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Join FLexlaw to unlock all legal intelligenceBurley, age 17, was arrested and tried for robbery in violation of Florida Statutes section 812.13(2)(c). The victim's testimony indicated that resist…
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SHARP, Judge.
Burley appeals his judgment and sentence for the offense of robbery in violation of section 812.13(2)(c), Florida Statutes (1979). He claims error in the trial court’s denial of his requested jury instruction and in the imposition of adult sanctions without, reference to the criteria provided in section 39.111(6), Florida Statutes (1979). We disagree and affirm the judgment and sentence.
The trial court denied Burley’s request for a jury instruction which provided:
Picking a pocket or purse snatching is not robbery if no more force or violence is used than is necessary to physically remove the property from a person who does not resist. But if the victim resists in any degree and this resistance is overcome by the physical force of the offender, the crime of robbery is complete.
This instruction was inappropriate because the victim’s testimony indicated that resistance occurred during the incident and there was apprehension on the part of the victim.
Further, the instructions to the jury included the following:
Now the property taken must be of some value, but the extent of the value makes no difference in determining guilt of the crime of robbery. The taking must be by the use of force of violence or by assault so as to overcome the resistance of the victim, or by putting the victim in fear so that he does not resist.
The law does not require that the victim of robbery resist to any particular extent or that he offer any actual resistance if the circumstances are such that he is placed in fear of death or great bodily harm if he does not resist. But unless prevented by fear, there must be some resistance to make the taking one done by force or violence.
This instruction adequately covered the requirement of resistance in the context of force and fear. Lowman v. State, 353 So. 2d 652 (Fla. 3d DCA 1977). Burley was seventeen years old when he was arrested for the robbery. He argues that the trial court imposed adult sanctions without following the procedures set out in section 39.111(6), Florida Statutes (1979). However, this issue was not presented to the trial court and therefore it was not preserved for appeal. Rubasky v. State, 401 So. 2d 894 (Fla. 5th DCA 1981); Dunman v. State, 400 So. 2d 838 (Fla. 5th DCA 1981). Accordingly, the judgment and sentence are affirmed without prejudice to appellant’s right to seek appropriate relief, e. g., through Florida Rule of Criminal Procedure 3.850.
AFFIRMED.
DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.
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State v. Learnhart Rhoden, 448 So. 2d 1013 (Fla. 1984)…tice. This is a petition to review a decision of the Second District Court of Appeal reported as Rhoden v. State, 421 So. 2d 780 (Fla. 2d DCA 1982), which directly conflicts with Glenn v. State, 411 So. 2d 1367 (Fla. 5th DCA 1982); Burley v. State, 402 So. 2d 73 (Fla. 5th DCA 1981); and Dunman v. State, 400 So. 2d 838 (Fla. 5th DCA 1981). We have jurisdiction, article V, section 3(b)(3), Florida Constitution. This cause concerns the trial court’s sentencing of the juvenile respondent as an adult without com…1 / 2
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Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dunman v. State, 400 So. 2d 838 (Fla. 5th DCA 1981)
- Rubasky v. State, 401 So. 2d 894 (Fla. 5th DCA 1981)
- Lowman v. State, 353 So. 2d 652 (Fla. 3d DCA 1977)