JOSEPH EDWARD ROWE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Edward Rowe appeals his convictions for robbery and battery arising from a purse-snatching incident. The court affirms the robbery conviction and thirty-year habitualization sentence, but vacates the simple battery conviction as a lesser included offense subsumed by the robbery charge.
The simple battery conviction must be vacated because it is a lesser included offense of robbery whose statutory elements are subsumed by the greater offense. Rowe was properly habitualized because he received actual notice of the state's habitualization effort and actively contested it at the hearing, satisfying notice requirements even without formal personal service.
[1] A conviction for battery, a category two lesser included offense of robbery, must be vacated when the force used to commit the battery is the same force necessary to cons…
[2] When the statutory elements of a lesser offense are subsumed by the greater offense, a defendant cannot be convicted of both.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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 constitute the offense of robbery was the same force used to support the battery conviction.”
Establishes the rule that identical force supporting both crimes means the lesser offense elements are subsumed by the greater offense.
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Join FLexlaw to unlock all legal intelligenceThe victim was leaving a supermarket when an assailant grabbed her purse. During the struggle, the victim fell or was pushed, suffering a broken elbow…
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CAMPBELL, Judge.
Appellant raises several issues in this appeal of his convictions and sentences for robbery and battery. We find merit in only one and, accordingly, affirm his conviction and sentence for robbery, and vacate the battery conviction.
Appellant was charged with aggravated battery and robbery. The evidence presented to the jury showed that the female victim of the offenses had just left a supermarket when a person came rushing toward her and grabbed at her purse. As she struggled to retain the purse she fell or was pushed to the ground, suffering a broken elbow and shoulder and a slight concussion. The assailant ran off with the victim’s purse and was apprehended a short time later after being chased by an eyewitness to the incident who subsequently identified appellant 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 constitute the offense of robbery was the same force used to support the battery conviction. In light of those facts and pursuant to section 775.-021(4)(b)3, the statutory elements of the lesser offense of battery are subsumed by the greater offense of robbery and appellant, therefore, cannot be convicted of both. The conviction and sentence for battery are, therefore, vacated and the conviction and sentence for robbery are affirmed.
Appellant also raises as an issue in this appeal whether he was properly habit-ualized. Appellant was sentenced to thirty years for second degree felony robbery by being habitualized pursuant to section 775.-084, Florida Statutes (1987). While appellant’s attorney was served with the notice that the state sought to habitualize appellant as is required by section 775.084(3)(b), that notice and the service thereon do not indicate that appellant was personally served with such notice. Our independent examination of the record below, however, reveals that appellant received actual notice of the state’s effort to habitualize him, appeared at the hearing for that purpose with his attorney, and actively contested the state’s efforts. We conclude the notice to appellant was sufficient to support his being habitualized. Roberts v. State, 559 So. 2d 289 (Fla. 2d DCA 1990).
Affirmed in part and reversed in part.
SCHOONOVER, C.J., and SCHEB, J„ concur.
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Massey v. State, 609 So. 2d 598 (Fla. 1992)…d made on behalf of defendant, thus the purpose of the statute was fulfilled. We do not conclude that the legislature intended to permit a defendant to avoid the application of the statute on the technical grounds raised here. Accord Rowe v. State, 574 So. 2d 1107 (Fla. 2d DCA 1990), review denied, 576 So. 2d 290 (Fla.1991); Bradford v. State, 567 So. 2d 911 (Fla. 1st DCA 1990), review denied, 577 So. 2d 1325 (Fla.1991). [*600] Under the facts of this case, we believe that the court below reached the proper c…
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Cave v. State, 613 So. 2d 454 (Fla. 1993)…case in Barfield v. State, 594 So. 2d 259 (Fla.1992). Accordingly, the decision below is quashed, and this cause is remanded to the district court for reconsideration in light of Barfield. The district court also noted conflict with Rowe v. State, 574 So. 2d 1107 (Fla. 2d DCA 1990), review denied, 576 So. 2d 290 (Fla.1991). On this issue, we find no error in the court’s determination that Cave lawfully could be tried and sentenced for both armed robbery and aggravated battery. There is no double jeopardy bec…
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Massey v. State, 589 So. 2d 336 (Fla. 5th DCA 1991)…of the [*338] statute was fulfilled. We do not conclude that the legislature intended to permit a defendant to avoid the application of the statute on the technical grounds raised here. [Emphasis added.] This decision was followed by Rowe v. State, 574 So. 2d 1107, 1108 (Fla. 2d DCA 1990), rev. denied, 576 So. 2d 290 (Fla.1991) in which the court held: While appellant’s attorney was served with the notice that the state sought to habitualize appellant as is required by section 775.084(3)(b), that notice and…1 / 2
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Flowers v. State, 559 So. 2d 289 (Fla. 4th DCA 1990)
- Roberts v. State, 559 So. 2d 289 (Fla. 2d DCA 1990)
- Sheppard v. State, 549 So. 2d 796 (Fla. 5th DCA 1989)