SAMUEL HILLMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Hillman was convicted of two armed robberies arising from a single criminal episode in which he and an armed companion robbed a Tampa furrier. The court affirmed the convictions for two separate robberies but reversed the mandatory minimum confinement requirement because Hillman himself was not in possession of a firearm.
The court held that two robberies of different individuals at the same time constitute two separate offenses calling for separate judgments and sentences. However, the court held that Hillman could not be subject to mandatory minimum confinement because he did not directly possess a firearm; vicarious possession through a confederate is insufficient to trigger the minimum confinement requirement.
[1] Robbery of different individuals during a single criminal episode constitutes separate offenses, notwithstanding the principle that multiple thefts of property from diffe…
[2] The amendment to Florida Statutes section 775.021(4) does not apply when the state charges that one criminal transaction or episode constituted two violations of the same…
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Join FLexlaw to unlock all legal intelligence“when the additional element of 'force, violence, assault, or fear' is added to a larceny, the crime then becomes robbery, which is characterized as an offense against the individual. Thus two robberies of different people at the same time are two separate offenses calling for two judgments and two sentences.”
Establishes the distinction between larceny and robbery and justifies separate convictions for robberies of different victims.
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Join FLexlaw to unlock all legal intelligenceAppellant and an armed companion robbed a furrier at gunpoint, taking the furrier's wallet, pistol, and car. The car contained fishing gear belonging …
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OTT, Judge.
Appellant and a companion robbed a Tampa furrier at gun point, taking his wallet, pistol, and car. The companion was armed, but appellant was not. The car contained fishing gear owned by the furrier and his grandson, who were on their way to fish when the crime occurred.
The robbers were charged with two counts of armed robbery, one involving the furrier’s wallet, pistol, and car, and the other involving the grandson’s fishing equipment. Found guilty as charged, appellant was given consecutive 30-year sentences, with minimum confinement of three years on each charge on the ground that he was armed at the time of the offense. § 775.087, Fla.Stat. (1979).
Appellant first argues that because only one criminal episode occurred it was error for the lower court to sentence him for two robberies under Hearn v. State, 55 So. 2d 559 (Fla.1951). The Florida Supreme Court in Hearn held that, “where defendants took nine cows and two calves belonging to different owners, at same time, from same place and under circumstances with same intent, the offense was a single larceny and conviction for larceny of one cow, property of one of the owners, was a bar on ground of former jeopardy to prosecution for larceny of the remaining cattle.”
Hearn is easily distinguished because it applies only to the offense of larceny, which has been characterized as a crime against the public. Thus, when cattle rustlers made away with cattle belonging to different individuals, it was held to be only one offense. However, when the additional element of “force, violence, assault, or fear” is added to a larceny, the crime then becomes robbery, which is characterized as an offense against the individual. Thus two robberies of different people at the same time are two separate offenses calling for two judgments and two sentences. Harris v. State, 286 So. 2d 32 (Fla.2d DCA 1973), and O’Neal v. State, 323 So. 2d 685 (Fla.2d DCA 1975); contra Hill v. State, 293 So. 2d 79 (Fla.3d DCA 1974).
We reject the state’s argument that the Hearn rule was nullified by the addition of subdivision (4) to section 775.021, Florida Statutes (1976).1 By its own terms the amendment does not apply when the state charges that one criminal transaction or episode constituted two violations of the same statute. The amendment was patently intended to permit, for example, conviction for both possessing and selling contraband when the evidence establishes that the accused sold and delivered drugs on a single occasion, or both possession and importation when he is apprehended as he takes delivery of a shipment of drugs from out of state.
We therefore find no merit in appellant’s first contention and affirm his conviction on the two separate charges. We find merit, however, in appellant’s contention that he is not subject to minimum confinement under section 775.087. The “possession of a firearm” essential to applicability of that statute must be direct. Vicarious possession (such as by a cohort), while sufficient to sustain conviction for armed robbery, first degree murder, etc., is not sufficient “possession” to justify imposition of the minimum period of imprisonment under the statute. Earnest v. State, 351 So. 2d 957 (Fla.1977). We need not speculate whether the statutory predicate would have been established had appellant armed himself with the pistol stolen from the furrier, since the evidence here was that appellant merely passed the wallet and pistol to his confederate when those items were removed from the furrier’s pockets.
The judgments and 30-year sentences are AFFIRMED. We REMAND with directions to strike from the sentences the requirement for a mandatory minimum confinement of three years. The appellant need not be present for this purpose.
BOARDMAN, Acting C. J., and GRIMES, J., concur. . Section 775.021(4), Florida Statutes (1976):
Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.
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Rose v. State, 507 So. 2d 630 (Fla. 5th DCA 1987)…2d 878 (Fla. 4th DCA 1982), aff’d. in part; rev'd. in part, 438 So. 2d 1 (Fla.1983). . Holmes v. State, 453 So. 2d 533 (Fla. 5th DCA 1984); Brown v. State, 413 So. 2d 1273 (Fla. 1st DCA 1982), affirmed, 430 So. 2d 446 (Fla.1983); Hillman v. State, 410 So. 2d 180 (Fla. 2d DCA 1982); O’Neal v. State, 323 So. 2d 685 (Fla. 2d DCA 1975), cert. denied, 334 So. 2d 607 (Fla. 1976); Harris v. State, 286 So. 2d 32 (Fla. 2d DCA 1973). See also Green v. State, 496 So. 2d 256 (Fla. 5th DCA 1986); Morales v. State, 451 S…
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Morales v. State, 451 So. 2d 941 (Fla. 5th DCA 1984)…y time and space, was exerted on both victims and separate takings occurred. The first force against Ms. Trofibio resulted in appellant’s taking the keys. The second force against Ms. Cox resulted in appellant’s taking the car. See Hillman v. State, 410 So. 2d 180 (Fla. 2d DCA 1982). We believe this case to be controlled by the holding in Brown v. State, 430 So. 2d 446 (Fla.1983), where the court agreed that two separate robberies had occurred when a single culprit entered a store and demanded money from one…
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Brown v. State, 413 So. 2d 1273 (Fla. 1st DCA 1982)…, violence, assault, or putting in fear of only one person. Two robberies of two different individuals, even though they occur almost simultaneously, are two separate crimes and properly result in two convictions and two sentences. Hillman v. State, 410 So. 2d 180 (Fla. 2d DCA 1982). Contra, Hill v. State, 293 So. 2d 79 (Fla. 3d DCA 1974). Brown further contends that Richardson v. State, 246 So. 2d 771 (Fla.1971) requires a reversal because of the trial judge’s failure to conduct an inquiry into an alleged v…
Previewing 3 of 26 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hearn v. State, 55 So.2d 559 (Fla. 1951)
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- Harris v. State, 286 So. 2d 32 (Fla. 3d DCA 1973)
- Cephus Hill and John Leggett v. State, 293 So. 2d 79 (Fla. 3d DCA 1974)
- O'Neal v. State, 323 So. 2d 685 (Fla. 2d DCA 1975)