TIMOTHY L. SHEPPARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sheppard was convicted of both robbery and battery for a single incident where he pushed a victim to the ground and wrestled with her to take her purse. The court held that battery is a lesser included offense of robbery, and the same force that constituted the battery escalated the theft to robbery, making separate convictions impermissible under Florida law.
Sheppard may not be separately convicted and sentenced for battery and robbery when the battery is a lesser included offense whose elements are subsumed by the greater robbery offense. The conviction and sentence for battery must be vacated because the same continuous force that supported the battery conviction escalated the theft to robbery.
[1] A battery is a lesser included offense of robbery when the force used to commit the battery is the same force used to accomplish the taking of property, thereby escalatin…
[2] Separate convictions and sentences for robbery and battery are impermissible when the statutory elements of the battery offense are subsumed by the greater offense of rob…
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Join FLexlaw to unlock all legal intelligence“Battery is a category two lesser included offense of robbery.”
Establishes the legal relationship between the two offenses at issue.
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Join FLexlaw to unlock all legal intelligenceSheppard pushed his victim to the ground, wrestled with her for her purse, and fled with it. The force used—pushing and wrestling—was continuous and d…
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DANIEL, Chief Judge.
Sheppard appeals from his convictions and sentences for robbery and battery. He raises two points on appeal. We find merit only in his second point — that he is being twice punished for the same conduct by separate convictions for strong armed robbery and battery.
The evidence shows that Sheppard pushed his victim to the ground, wrestled with her for her purse and, having pulled the purse from her grasp, fled. The offense of theft is escalated to robbery when force is employed. In this case the force was the pushing and wrestling with the victim for possession of the purse — in other words, the battery.
Battery is a category two lesser included offense of robbery.1 In an apparent response to Carawan v. State, 515 So. 2d 161 (Fla.1987), the Legislature adopted chapter 88-131, section 7, Laws of Florida amending section 775.021(4), Florida Statutes (1987) clarifying its intent in sentencing in cases of multiple convictions. Chapter 88-131 outlines three categories of offenses in which separate sentences are impermissible. The first two categories do not apply here. The third reads:
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.
The state, citing Holtsclaw v. State, 542 So. 2d 437 (Fla. 5th DCA 1989), argues that the pushing down of the victim was one battery and the wrestling or swinging her back and forth to separate her from her pocketbook was the second battery or “force” that escalated the theft of the pocketbook to robbery. To accept this argument one would have to theorize that (forgetting the robbery for a moment) the act of pushing the victim to the ground and wrestling with her would have supported two counts of battery. The force applied here was one continuous act of force with one purpose in mind — that of relieving the victim of her pocketbook. In Holtsclaw, the acts of violence, although strung together in time, were in fact separate and individual. There the defendant first struck his wife with his fist; then secured a gun and touched her with the gun, and then repeatedly threatened to kill her while holding the loaded gun in his hand. Such was not the ease here. The force used to accomplish the taking of the purse, thereby escalating such taking to the level of robbery, was the same force supporting the battery conviction. For such reason the judgment and sentence for battery is vacated. See Rojas v. State, 543 So. 2d 415 (Fla. 5th DCA 1989). The vacating of the battery judgment and sentence does not affect the recommended sentencing range and there is therefore no necessity to remand for resentencing.
AFFIRMED in part; VACATED in part.
COBB and COWART, JJ., concur. . See In the Matter of Use by the Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So. 2d 594 (Fla.1981), modifying Brown v. State, 206 So. 2d 377 (Fla.1968).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cave v. State, 613 So. 2d 454 (Fla. 1993)…ause the language of the count of the information that charged armed robbery did not contain all of the elements of aggravated battery. See Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses. We disapprove Rowe and Sheppard v. State, 549 So. 2d 796 (Fla. 5th DCA 1989), to the extent they are inconsistent with this opinion. It is so ordered. OVERTON, MCDONALD, GRIMES and HARDING, JJ., concur. BARKETT, C.J., concurs specially with an opinion. KOGAN, J., concurs specially with an opinion. SH…
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Rowe v. State, 574 So. 2d 1107 (Fla. 2d DCA 1990)…nt as the assailant. The jury found appellant guilty of robbery and aggravated battery’s lesser included offense of simple battery. We conclude that the factual circumstances here are not materially distinguishable from those in Sheppard v. State, 549 So. 2d 796 (Fla. 5th DCA 1989). We agree with the Sheppard court that under such circumstances the battery conviction, a category two lesser included offense of robbery, must be vacated. The force that was used to take the victim’s purse and was necessary to c…
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Cave v. State, 578 So. 2d 766 (Fla. 1st DCA 1991)…category two lesser-included offense of armed robbery, must be vacated. Case law from other districts supports this position. See Rowe v. State, 574 So. 2d 1107 (Fla. 2d DCA 1990); Hall v. State, 549 So. 2d 758 (Fla. 3d DCA 1989); Sheppard v. State, 549 So. 2d 796 (Fla. 5th DCA 1989). However, for the reasons stated below, we disagree. Cave acknowledges the amendments to section 775.021(4), Florida Statutes, found in Chapter 88-131, Section 7, Laws of Flor [*767] ida, effective July 1, 1988. He also acknowle…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- In re the USE BY the Trial Courts OF the Standard Jury Instructions IN Crim. Cases & the Standard Jury Instructions in Misdemeanor Cases, 431 So. 2d 594 (Fla. 1981)
- Holtsclaw v. State, 542 So. 2d 437 (Fla. 5th DCA 1989)
- Crooms v. State, 543 So. 2d 415 (Fla. 1st DCA 1989)