WADE LEE RANDOLPH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's robbery conviction is reversed because the force used occurred after he fled the store with stolen cologne, not contemporaneously with the taking, and thus constitutes only petit theft under Royal v. State.
Force employed while fleeing a retail store after committing theft cannot support a robbery conviction because the force must occur prior to or contemporaneous with the taking of property.
[1] Force employed while fleeing a retail store after committing theft cannot constitute robbery because the force must occur prior to or contemporaneous with the taking of p…
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Join FLexlaw to unlock all legal intelligence“one who employs force while fleeing a retail store after committing theft cannot be convicted of robbery because the use of force must occur prior to or contemporaneous with the taking of property to constitute robbery”
Royal v. State holding on the temporal requirement for robbery
Appellant took a bottle of cologne from Albertson's and at least ten minutes passed before a fight erupted between appellant and store security person…
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SMITH, Judge.
Appellant appeals his conviction for robbery contending that after he took the bottle of cologne from Albertson’s at least ten minutes passed before the fight erupted between appellant and the store security personnel outside the store. At the time of the trial, the trial judge was without the benefit of the Florida Supreme Court’s recent decision in Royal v. State, 490 So. 2d 44 (Fla.1986), which held that one who employs force while fleeing a retail store after committing theft cannot be convicted of robbery because the use of force must occur prior to or contemporaneous with the taking of property to constitute robbery.
The facts in this case are indistinguishable from those of Royal.
Accordingly, we reverse the robbery conviction and remand for entry of judgment and sentence for petit theft.1 Kelly v. State, 490 So. 2d 1383 (Fla. 5th DCA 1986). Appellant’s remaining point is without merit.
AFFIRMED in part; REVERSED in part and REMANDED for proceedings consistent with this opinion.
JOANOS and BARFIELD, JJ., concur. . Although the jury instructions were not transcribed for purposes of this appeal, we note that the Florida Standard Jury Instructions in Criminal Cases lists petit theft as a Category I lesser included offense of robbery. The verdict form in the record indicates that the jury was given the opportunity to convict appellant of theft as a lesser included offense of robbery. Because we assume the jury was instructed on petit theft and because the evidence does support a petit theft conviction, we have remanded for entry of judgment and sentence for that crime.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Royal v. State, 490 So. 2d 44 (Fla. 1986)
- Dolan Robert Kelly v. State, 490 So. 2d 1383 (Fla. 5th DCA 1986)
- State v. Foster, 490 So. 2d 1383 (Fla. 5th DCA 1986)