GARY MAULTSBY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gary Maultsby was convicted of strong-arm robbery but acquitted of battery on the same victim. He appealed, arguing the verdicts were inconsistent and violated double jeopardy protections. The appellate court affirmed, holding that robbery and battery are distinct crimes with different elements that do not necessarily overlap.
The court held that Maultsby's double jeopardy rights were not violated because robbery and battery are separate offenses with distinct elements—robbery requires proof of taking or depriving property while battery requires actual and intentional touching—and a defendant can lawfully be convicted of one but not the other. The peremptory challenge issue was not properly preserved for appeal because Maultsby failed to renew his objection prior to the jury being sworn.
[1] A conviction for robbery is not inconsistent with an acquittal for battery on the same victim, as robbery requires proof of taking property, an element not required for b…
[2] A defendant's right against double jeopardy is not implicated when the offenses presented to the jury are separate and each requires proof of an element that the other do…
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“Robbery requires proof of a taking or depriving of property, an element that battery does not require. In contrast, the crime of battery requires an actual and intentional touching of the victim, which is not necessarily an element of robbery. During a robbery the robber could place the victim "in fear", thereby satisfying the force or violence element of robbery, without satisfying the intentional or actual touching element of battery.”
Establishes the legal distinction between robbery and battery, explaining why verdicts convicting on one and acquitting on the other are not inconsistent.
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Join FLexlaw to unlock all legal intelligenceMaultsby was tried on four counts: strong-arm robbery, two counts of battery on a person 65 years or older, and petit theft. The state nolle prossed t…
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GREEN, Judge.
Gary Maultsby proceeded to a jury trial on a four count information which charged strong-arm robbery, two counts of battery on a person 65 years or older and petit theft. The petit theft count was nolle prossed by the state and the trial court acquitted Maultsby of one count of battery on a person 65 years or older. Thereafter, the jury acquitted Maultsby of the remaining battery charge but convicted him of the strong-arm robbery. Maultsby timely filed this appeal and raises two issues.
He first asserts that his conviction for strong-arm robbery is inconsistent with his acquittal for battery on the same victim and thus violative of the double jeopardy provisions of both the Florida and United States Constitutions. Maultsby points out that the statutory elements of a robbery are: the taking of money or other property from the person or custody of another by force, violence, assault or putting in fear with intent to deprive the person or the owner of the money or property. § 812.13, Fla. Stat. (1993); Hamrick, v. State, 648 So. 2d 274, 276 (Fla. 4th DCA 1995). Further, the statutory elements of a battery are: an actual and intentional touching or striking of another person against the will of the other person; or intern tionally causing bodily harm to an individual. § 784.03, Fla. Stat. (1993); Hamrick, 648 So. 2d. at 276. Maultsby, makes the argument then that where the jury found him not guilty of intentionally touching or striking the victim, he could not have simultaneously been found guilty of robbing the same victim by force, violence or putting in fear. He therefore asserts that his right not to be placed in double jeopardy was violated and his robbery conviction must be reduced to petit theft. We disagree.
We find that Maultsby’s right against double jeopardy was not implicated below where each of the offenses presented to the jury were separate and required proof of an element that the other did not. Hamrick, 648 So. 2d at 276. As the Hamrick court so poignantly observed:
Robbery requires proof of a taking or depriving of property, an element that battery does not require. In contrast, the crime of battery requires an actual and intentional touching of the victim, which is not necessarily an element of robbery. During a robbery the robber could place the victim “in fear”, thereby satisfying the force or violence element of robbery, without satisfying the intentional or actual! ] touching element of battery.
Thus, it is clear that Maultsby could have legally been found guilty of a robbery but not of a battery in the same criminal episode.
As to his remaining argument, Maultsby asserts that the trial court erred in overruling Ms Slappy1 objection to the state’s peremptory challenge of one of the vemrepersons. Our review of the record, however, reveals that this issue was hot properly preserved for appellate review where Maultsby accepted the panel by failing to renew his objection prior to the jury being sworn. See Melbourne v. State, 679 So. 2d 759, 765 (Fla.1996); Joiner v. State, 618 So. 2d 174, 176 (Fla.1993); Portela v. State, 661 So. 2d 932, 932 (Fla. 3d DCA 1995); Cruz v. State, 660 So. 2d 792, 793 (Fla. 3d DCA 1995), rev. denied, 667 So. 2d 774 (Fla.1996).
Affirmed.
. State v. Slappy, 522 So. 2d 18 (Fla.), cert, denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988).
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Manzell Arnold v. State, 755 So. 2d 696 (Fla. 4th DCA 1999)…bjection. See Nelson v. State, 688 So. 2d 971, 975 (Fla. 4th DCA), review denied, 697 So. 2d 1217 (Fla.1997). The purpose of renewing the objection is to put the court on notice that such an objection remains outstanding. See also Maultsby v. State, 688 So. 2d 1010 (Fla. 3d DCA 1997) (defendant who accepted jury panel by failing to renew objection to state’s peremptory challenge of venireperson pri- or to the jury being sworn failed to preserve such objection for appellate review). The record before us demons…
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Brown v. State, 761 So. 2d 1135 (Fla. 1st DCA 2000)…injury” as a species of battery. See, e.g., Aiken v. State, 742 So. 2d 811 (Fla. 2d DCA 1999) (upholding separate convictions for aggravated assault with a firearm and for sexual battery with a firearm based on the same conduct); Maultsby v. State, 688 So. 2d 1010 (Fla. 3d DCA 1997) (upholding separate convictions for robbery and for battery based on the same conduct, since robbery can be accomplished by an assault without battery); Garcia v. State, 594 So. 2d 806 (Fla. 1st DCA 1992) (upholding separate convi…
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Phillips v. State, 834 So. 2d 272 (Fla. 5th DCA 2002)…y otherwise putting the victim in fear without finding that the appellant committed a battery. The crime of battery, thus, was not subsumed by the attempted robbery. See Hamrick v. State, 648 So. 2d 274 (Fla. 4th DCA 1995); accord Maultsby v. State, 688 So. 2d 1010 (Fla. 3rd DCA 1997). Because the battery was not necessary to prove the robbery and the battery did not require proof of a theft, appellant was correctly convicted of both offenses. Secondly, the appellant argues that the state attorney, subsequent…
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
- Jeanie H. Melbourne v. State, 679 So. 2d 759 (Fla. 1996)
- State v. Slappy, 522 So. 2d 18 (Fla. 1988)
- Joiner v. State, 618 So. 2d 174 (Fla. 1993)
- Men's Int'l Prof'l Tennis Council v. Volvo N. Am. Corp., 487 U.S. 1219 (U.S. 1988)
- Waste Mgmt. of Wis., Inc. v. Wis. Dep't of Natural Res., 487 U.S. 1219 (U.S. 1988)
- Hamrick v. State, 648 So. 2d 274 (Fla. 4th DCA 1995)
- Portela v. State, 661 So. 2d 932 (Fla. 3d DCA 1995)
- Cruz v. State, 660 So. 2d 792 (Fla. 3d DCA 1995)