THE STATE OF FLORIDA, APPELLANT,
v.
DENNIS BAKER, APPELLEE
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Florida appeals the dismissal of a robbery charge against Baker, who took a videotape recorder from a department store but abandoned it before using force to resist security guards. The court affirms the dismissal, holding that even under amended robbery statutes allowing force subsequent to taking, the defendant's abandonment of the property broke the required continuity between the taking and the use of force.
The dismissal of the robbery charge is proper because although Florida law was amended to allow force subsequent to the taking, the defendant's abandonment of the property before using force breaks the required continuity between the taking and the use of force, so the statutory requirement of a continuous series of acts or events is not satisfied.
[1] Robbery requires the use of force, violence, assault, or putting in fear to occur prior to or contemporaneous with the taking of property, or as part of a continuous seri…
[2] Abandonment of property before the use of force to flee from apprehension negates the continuous series of acts or events required for a robbery charge under amended stat…
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Join FLexlaw to unlock all legal intelligence“the force used in the course of taking property may be subsequent to the taking if the force and the act of taking 'constitute a continuous series of acts or events.'”
Establishes the amended statutory language that allows force after the taking, which the state relied upon
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Join FLexlaw to unlock all legal intelligenceDepartment store security guards observed Baker pick up a videotape recorder and exit the store. When guards approached, Baker put down the machine in…
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NESBITT, Judge.
The state appeals an order dismissing a charge of robbery. We affirm.
Department store security guards observed the defendant pick up a videotape recorder and exit the store with it. Upon noticing the guards approaching him, the defendant put down the machine inside the shopping mall and began to run. The guards stopped the defendant, who put up a struggle, shouting that he be left alone and that he had a gun. At no time during the struggle did the defendant attempt to grab the abandoned machine and run; the recorder remained on the floor. The defendant was charged with robbery. Based on the undisputed facts, defendant moved to dismiss the charge for failure to state a prima facie case of guilt. Fla.R.Crim.P. 3.190(c)(4).
Pursuant to Florida Rule of Criminal Procedure 3.190(d), the state demurred citing recent amendments to section 812.13(1) and (3)(b), Florida Statutes (1987) which provide, in sum, that the force used in the course of taking property may be subsequent to the taking if the force and the act of taking “constitute a continuous series of acts or events.” At a hearing on the motion to dismiss, the trial court suggested that the state amend the charge to one of grand theft; the state declined to amend. The court granted the motion to dismiss the robbery charge, and the state now appeals.
The legislature’s intent in amending the above sections was clearly to repeal the rule in Royal v. State, 490 So. 2d 44 (Fla.1986) which held that, in order to constitute robbery, the defendant’s use of force, violence, assault or putting in fear had to occur prior to or contemporaneous with the taking.
However, the controlling fact in the case at hand is that the defendant took the property without any use of force and abandoned the property before he used force to flee from the security guards. The defendant would have to have been in continuous possession of the property during the escape and the subsequent flight or resisting of arrest in order for the act to fall within the amended statute.
Thus, the statutory requirement that the force used be part of “a continuous series of acts or events” involved with taking the property was not met.
Accordingly, it was proper to dismiss the charge of robbery.
Affirmed.
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Citator
Cited By (11 total)
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Hildagarde Simmons v. State, 551 So. 2d 607 (Fla. 5th DCA 1989)…ended statute. Here, however, the taking was completed without any use of force and the property abandoned before any force was employed. There was no relationship between the force used and the taking as required by the statute. See State v. Baker, 540 So. 2d 847 (Fla. 3d DCA 1989). These undisputed facts do not establish a robbery but do establish the necessarily lesser included offense of petit theft. See J.C.B. v. State, 512 So. 2d 1073 (Fla. 1st DCA 1987), rev. denied, 520 So. 2d 586 (1988). The defenda…
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Rumph v. State, 544 So. 2d 1150 (Fla. 5th DCA 1989)…this amendment was intended to supersede the Florida Supreme Court decision of Royal v. State, 490 So. 2d 44 (Fla.1986). Royal held that to constitute robbery, force must be used prior to or while the taking is in progress. See also, State v. Baker, 540 So. 2d 847 (Fla. 3d DCA 1989) (the legislature’s clear intent was to repeal Royal)) Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987) rev. denied, 525 So. 2d 881 (Fla.1988) (Judge Cobb’s dissent at ftnt. 2). Appellant’s use of force to shove Ms. King out o…
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Douglas v. State, 824 So. 2d 256 (Fla. 4th DCA 2002)…RIAM. Affirmed. See § 812.13(1) and 3(b), Fla. Stat. (1997) (provides that robbery occurs if force or intimidation is used “prior to or contemporaneous' with, or subsequent to the taking of the property ....”) (emphasis added); see State v. Baker, 540 So. 2d 847, 848 (Fla. 3d DCA 1989) (legislature amended statute to repeal rule in Royal v. State, 490 So. 2d 44 (Fla.1986)). GUNTHER, WARNER and SHAHOOD, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Royal v. State, 490 So. 2d 44 (Fla. 1986)