WILLIE JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1983-06-09
No. AM-491
LARRY G. SMITH and «TOANOS, JJ., concur.
432 So. 2d 758 Florida District Court of Appeal, First District (1983) Positive Treatment
Cited by 8 cases

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Holding

The court held that the evidence was sufficient to support a conviction for armed robbery because the 'taking' element was satisfied when the money was removed from the cash register and placed within the dominion and control of the perpetrators.


Headnotes

[1] The "taking" element of robbery is satisfied when property is removed from the victim's possession and comes within the dominion and control of the perpetrator, even if o…

[2] Asportation, the movement of property, required for robbery can be completed by the slightest removal of the article from its original position or place.

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Facts & Procedural History

The defendant and an accomplice robbed a convenience store clerk at knifepoint, demanding money. The clerk placed the money from the register into a b…

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Opinion of the Court
NIMMONS, Judge.

NIMMONS, Judge.

Johnson appeals from a conviction of armed robbery. He asserts that the evidence was insufficient to support a verdict of any offense greater than attempted robbery. The narrow issue in this case is whether there was a “taking” within the meaning of the robbery statute, Section 812.13, Florida Statutes. We believe there was and affirm.

This was a convenience store robbery of a female clerk on December 19, 1981, in Tallahassee. After entering the store with his accomplice, Johnson approached the clerk, threatened her with a knife and demanded all of her money. The clerk replied that she would give them all she had but begged them not to hurt her. The accomplice was carrying a “club” which was subsequently identified as an axe handle. Johnson and his accomplice were positioned in front of the counter and the clerk was behind the counter at the cash register. Pursuant to the accomplice’s instructions, the clerk put the money from the register in a paper bag and placed the bag on the counter in front of them. Although Johnson touched the bag, neither he nor his accomplice picked it up. Instead, they turned away from the counter as the presence of surveilling police officers became evident. The accomplice was arrested as he left the store and Johnson surrendered after being ordered to come outside the store.

Robbery is defined in Section 812.13(1), Florida Statutes, as follows:

Robbery means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear, (emphasis added)

The robbery statute in its present form has been with us since 1974. Ch. 74-383, Laws of Florida. However, the “taking” element of robbery was expressly included in predecessor statutes and was also an element of common law robbery. Williams v. Mayo, 126 Fla. 871, 172 So. 86 (1937). We are therefore at liberty to rely upon a broad range of authorities which have addressed this element.

The taking involved in robbery is basically equivalent to the asportation element of common law larceny. Williams v. Mayo, supra; accord Bell v. State, 394 So. 2d 979 (Fla.1981); Martin v. State, 379 So. 2d 179 (Fla. 1st DCA 1980). The asportation required for the crime of larceny may be completed by the slightest removal of the article from its original position or place where the owner placed it or wanted it to be. Lyons v. State, 47 So. 2d 541 (Fla.1950); Driggers v. State, 96 Fla. 232, 118 So. 20 (1920). Fitch v. State, 135 Fla. 361, 185 So. 435 (1938). In Driggers, supra, a case wherein the defendants were charged with larceny of a cow, the court stated:

By the act of these accused persons [the animal] was removed from a standing position to a prone position upon its side. The act was done for the purpose of depriving the owner of his property without his consent and to appropriate it to the use of the slayers of the beast, but there was no actual removal of the carcass from the spot of ground where it lay when it fell.

Our interpretation of the Florida authorities is also consistent with the general law on the subject. As stated in 77 C.J.S., Robbery, § 3:

In order to constitute robbery there must be a taking or asportation. In other words, it must appear that the property was taken from the possession of the victim into that of the robber. However, the crime is consummated when the robber acquires possession of the property, even if for a short time, and it is not necessary that the property be taken into the hands of the robber, or that he should have actually carried the property away, out of the physical presence of the lawful possessor, or that he should have made his escape with it. Further, the distance the property is taken may be very small, the slightest change of location whereby dominion of the property is transferred to the offender being sufficient to establish asportation.

At first blush, appellant’s argument that, at most, there was only an attempted robbery would appear to have merit. However, examination of the facts in this case in the light of the above applicable authorities demonstrates that the element of taking was clearly satisfied. The clerk was required by appellant and his accomplice to remove the money “from its original position or place where the clerk wanted it to be” and to place the bag containing the money on the counter in front of them. In doing so, the bag came within the dominion and control of the appellant and his accomplice, and the asportation, or taking, was complete. This would be so even if the appellant had not, as the victim testified, momentarily touched the bag.

The judgment is therefore AFFIRMED.

LARRY G. SMITH and «TOANOS, JJ., concur.


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Citator

Cited By

  • Wright v. State, 487 So. 2d 1176 (Fla. 1st DCA 1986)
    …their wallets and place them on the floor testified that they never saw appellant with their wallets. Appellant now argues that the State failed to show that these wallets were ever within his dominion and control. We disagree. In Johnson v. State, 432 So. 2d 758 (Fla. 1st DCA 1983), this court found the element of taking necessary for a robbery conviction to have been satisfied by the fact that the victim was required to remove money from its original position where the victim wanted it to be and to place t…
  • Royal v. State, 452 So. 2d 1098 (Fla. 5th DCA 1984)
    …er4 and was satisfied by the slightest removal,5 it being stated that even “a hair’s breadth will do.”6 To complete a larceny it was not necessary that the property be removed from the presence of the owner or from his premises. In Johnson v. State, 432 So. 2d 758 (Fla. 1st DCA 1983), the court observed that the taking involved in robbery is basically equivalent to the aspor-tation element of common law larceny and that the asportation required for the crime of larceny may be completed by the slightest remova…
  • Onelio G. Garcia, Jr. v. State, 594 So. 2d 806 (Fla. 1st DCA 1992)
    …t erred in denying his motion for judgment of acquittal on the armed robbery charge asserting as grounds that the state failed to present sufficient evidence to establish the taking element and affirm this issue on the authority of Johnson v. State, 432 So. 2d 758 (Fla. 1st DCA 1983). Thirdly, we find no merit in Garcia’s argument that his convictions for both aggravated battery and burglary with intent to commit an assault while armed, being based on the single act of pushing the victim into her car at knif…

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