JAMES L. FLARITY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the evidence supported a conviction for petit larceny, not robbery, based on the timing of the violence relative to the taking.
Appellant pumped gasoline without sufficient funds to pay and was confronted by the attendant. The attendant attempted to take the keys, and appellant…
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DAUKSCH, Judge.
This is an appeal from a robbery conviction. The issue is whether the state proved a case of robbery or merely petit larceny. Pursuant to the recent supreme court ruling in Royal v. State, 490 So. 2d 44 (Fla.1986), we find that the evidence Supports a conviction for petit larceny.
Appellant pumped gasoline into his car at a self-service station and did not have enough money to pay for it. When the appellant told the attendant he wanted to go across the street to cash a check in order to pay for the gasoline, the attendant said he would have to leave his car there to make sure he returned. There were additional circumstances which led the attendant to justifiably believe that appellant did not intend to pay for the gasoline.
As appellant started his car, the attendant reached into the car and attempted to take the keys. The attendant held onto the car as the appellant began to accelerate. He was eventually required to let go when appellant drove away.
The taking of the gasoline occurred when the fuel reached the car. Because the violence occurred after the taking, the crime committed was petit larceny rather than robbery. Royal. The conviction is reversed and this cause remanded for judgment and sentence for petit larceny.
REVERSED and REMANDED.
ORFINGER and COWART, JJ., concur.
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Citator
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Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987)…ent. 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, Fla…
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Flarity v. State, 527 So. 2d 295 (Fla. 5th DCA 1988)…COWART, Judge, dissenting. In Flarity v. State, 499 So. 2d 18,19 (Fla. 5th DCA 1986), this court reversed Flarity’s conviction for robbery and “remanded for judgment and sentence for petit larceny.” However, after remand, at the state’s request, the trial court sentenced Flarity for felony petit theft.1 Flarit…
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Foster v. State, 596 So. 2d 1099 (Fla. 5th DCA 1992)…da in Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922); and much more recently in Royal v. State, 490 So. 2d 44 (Fla.1986), quashing 452 So. 2d 1098 (Fla. 5th DCA 1984). See also, Milam v. State, 505 So. 2d 34 (Fla. 5th DCA 1987); Flarity v. State, 499 So. 2d 18 (Fla. 5th DCA 1986); Hogan v. State, 493 So. 2d 84 (Fla. 4th DCA 1986); Kelly v. State, 490 So. 2d 1383 (Fla. 5th DCA 1986); Annot. Use of Force or Intimidation in Retaining Property or In Attempting to Escape, Rather Than in Taking Property, as Ele…
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- Royal v. State, 490 So. 2d 44 (Fla. 1986)