HILDAGARDE SIMMONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hildagarde Simmons appealed an order withholding adjudication on a robbery charge after a nolo contendere plea, arguing the information should be dismissed. The court reversed, holding that the undisputed facts established only petit theft, not robbery, because the taking was completed and property abandoned before any force was used, breaking the required nexus between force and taking under the amended robbery statute.
The court held that the facts establish petit theft, not robbery, because the taking was completed without any use of force and the property was abandoned before any force was employed, creating no relationship between the force used and the taking as required by the statute.
[1] Force used subsequent to the taking of property may constitute robbery if the force and the act of taking constitute a continuous series of acts or events.
[2] A defendant's struggle with store employees after abandoning stolen merchandise does not establish the force element of robbery when the taking was completed without forc…
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Join FLexlaw to unlock all legal intelligence“in robbery, 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 key statutory requirement for robbery under the amended statute
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Join FLexlaw to unlock all legal intelligenceSimmons hid merchandise on her person and left a department store without paying. She was stopped outside and escorted back inside by two store employ…
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PER CURIAM.
The defendant appeals an order withholding adjudication of guilt and placing her on probation, entered pursuant to a plea of nolo contendere, for robbery, section 812.-13, Florida Statutes, claiming error in the denial of her motion to dismiss1 the information.
The undisputed facts are that the defendant hid certain merchandise on her person and left a department store without paying for such merchandise. The defendant was stopped outside the store and escorted back inside by two store employees. Once inside, the defendant removed the merchandise from her person and threw it to the floor. The defendant was then instructed to accompany the two store employees to the store’s security office. Only then did the defendant begin to resist and she struggled with one of the employees.
The legislature amended section 812.-13(1), (3)(b), Florida Statutes (1987) effective October 1, 1987, to provide, in sum, that in robbery, 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.” In Rumph v. State, 544 So. 2d 1150 (Fla. 5th DCA 1989), the defendant used force as he fled with stolen jeans and his conviction of robbery was affirmed on the basis of the amended 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 defendant’s motion to dismiss then was more correctly in the nature of a motion for reduction of the charged offense and to that extent should have been granted. See State v. Smulowitz, 482 So. 2d 1388 (Fla. 3d DCA 1986), pet. for rev. dism., 486 So. 2d 587 (Fla.1986) (affirming reduction of charge pursuant to (c)(4) motion). The order is hereby reversed with instructions to enter a corrected order, reducing the charge to petit theft and to make a disposition consistent with a nolo plea to that charge.
REVERSED and REMANDED.
COWART, GOSHORN and HARRIS, JJ., concur. . Florida Rule of Criminal Procedure 3.190(c)(4).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Messina v. State, 728 So. 2d 818 (Fla. 1st DCA 1999)…om the shopping cart and ending with the victim’s fall from the hood of the defendant’s car. There was no interruption that would lead us to conclude that the subsequent battery on the victim was a new and separate offense. Compare Simmons v. State, 551 So. 2d 607 (Fla. 5th DCA 1989) (the evidence was insufficient to sustain the defendant’s conviction for robbery, because he had abandoned the stolen property before he used force against the victim). Here, the taking and the use of force were part of the same…
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Lemus v. State, 641 So. 2d 177 (Fla. 5th DCA 1994)…e falls somewhere within a spectrum of cases holding, on the one end, that the continuous series of acts necessary to provide a nexus between the taking of property and force is interrupted by abandonment of stolen property, citing Simmons v. State, 551 So. 2d 607 (Fla. 5th DCA 1989), and, on the other end, holding that the nexus is not interrupted when the defendant uses force after the theft but to aid in her escape, citing Santilli v. State, 570 So. 2d 400 (Fla. 5th DCA 1990); Love v. State, 583 So. 2d 371…
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Wolf v. State, 679 So. 2d 351 (Fla. 5th DCA 1996)…in petit theft and parallels the established rule that petit theft is a necessarily lesser included offense of robbery. See State v. Rodriquez, 500 So. 2d 120, 122 (Fla.1986); Sullivan v. State, 631 So. 2d 1142 (Fla. 1st DCA 1994); Simmons v. State, 551 So. 2d 607, 608 (Fla. 5th DCA 1989). It would follow that, as with robbery, see Rodriquez, 500 So. 2d at 122; J.C.B. v. State, 512 So. 2d 1073, 1074 (Fla. 1st DCA 1987), review denied, 520 So. 2d 586 (Fla.1988), grand theft cotdd not be a necessarily lesser in…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest of J.C.B. v. State, 512 So. 2d 1073 (Fla. 1st DCA 1987)
- Woods v. Ashlin, 544 So. 2d 1150 (Fla. 4th DCA 1989)
- Rumph v. State, 544 So. 2d 1150 (Fla. 5th DCA 1989)
- State v. Marlow K. Smulowitz, 482 So. 2d 1388 (Fla. 3d DCA 1986)
- Hodin v. Hodin, 540 So. 2d 847 (Fla. 3d DCA 1989)
- State v. Baker, 540 So. 2d 847 (Fla. 3d DCA 1989)
- State v. Marlow K. Smulowitz, 486 So. 2d 587 (Fla. 1986)