GREGORY THOMAS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2010-06-02
No. 3D07-2401
Before SHEPHERD, CORTINAS, and ROTHENBERG, JJ.
36 So. 3d 853 Florida District Court of Appeal, Third District (2010) Positive Treatment
Cited by 15 cases

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Synopsis

Gregory Thomas was convicted of first-degree felony murder based on a predicate robbery charge arising from his snatching of a purse containing $460 from the victim's mother and his subsequent use of force against the victim as he fled. The court affirmed, holding that under Florida's 1987 amendment to the robbery statute, force used during flight after a taking constitutes force 'in the course of the taking' if the taking and force form a continuous series of acts, even if directed against a third party.


Holding

The court held that there was substantial competent evidence supporting the felony murder conviction because the robbery statute, as amended in 1987, allows force used subsequent to a taking to constitute force 'in the course of the taking' if the taking and the force comprise a continuous series of acts or events. The force need not be directed at the person from whom the property was taken, provided there is continuity between the taking and the use of force.


Headnotes

[1] Robbery is defined as the taking of property from another by force, violence, assault, or putting in fear, when such acts occur in the course of the taking.

[2] An act is considered "in the course of the taking" for robbery purposes if it occurs prior to, contemporaneous with, or subsequent to the taking, and if it and the act of…

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Key Quotes

“An act shall be deemed "in the course of the taking" if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.”

This statutory provision, added by the 1987 amendment to section 812.13(3)(b), is the key legal basis for the court's holding that force used during flight after a taking can satisfy the robbery statute.

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Facts & Procedural History

Thomas approached a family at a curb and snatched a purse from the shoulder of the victim's mother, which contained $460 that the victim had given her…

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Opinion of the Court
CORTINAS, J.

CORTINAS, J.

Gerzon Ferrales (the “Victim”) was unloading luggage after arriving from Tampa with his wife, his mother, and his mother’s husband when he was approached by the defendant, Gregory Thomas (“Thomas”). Thomas approached the Victim and his family under the pretext of selling them a CD player. When they declined to purchase, Thomas snatched a purse from the shoulder of the Victim’s mother. In addition to personal items belonging to the Victim’s mother, the purse also contained $460 that the Victim had given to his mother. Thomas attempted to flee the scene in a getaway car driven by another individual. The Victim attempted to prevent the taking by grabbing on to the passenger side door of the vehicle as it took off.

As the vehicle sped away, Thomas forcibly attempted to knock the Victim from the side of the car. At one point, the driver stopped and apparently exited the car, but he quickly re-entered and resumed driving after he noticed approaching witnesses. Throughout these events, the Victim continued to resist the taking by holding on to the car door. After several minutes, the car arrived at a padlocked gate at the Opa-locka airport. The car slowed down, then sped through the gate and at least one more fence at the airport. The force of these impacts peeled the Victim off the car door. The Victim suffered several broken bones, lacerations, and bruises and died later at the hospital as a result of blunt force trauma to the head and neck. The car was found abandoned not far from the airport, along with the purse.

*855Thomas was tried on charges of first degree felony murder, robbery by sudden snatching, and grand theft auto.1 At trial, Thomas moved for a judgment of acquittal on the count of first degree felony murder after the State rested. Thomas argued that there was insufficient evidence to establish the predicate felony of robbery. The motion was denied, and the jury ultimately found Thomas guilty of first degree felony murder, robbery by snatching, and grand theft auto. Thomas appeals the denial of his motion for acquittal.

We review the denial of the motion for judgment of acquittal de novo. Troy v. State, 948 So.2d 635, 645-46 (2007); Johnston v. State, 863 So.2d 271, 283-84 (Fla.2003); Pagan v. State, 830 So.2d 792, 803 (Fla.2002). Generally, a conviction supported by substantial competent evidence will not be reversed by an appellate court. See Pagan, 830 So.2d at 803. Sufficient competent evidence exists to sustain a conviction “[i]f, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt....” Id.

The elements of the crime of robbery are set forth in section 812.13, Florida Statutes. Prior to 1987, Florida law “interpreted section 812.13 as being consistent with the common law ... [and required that] ‘[t]he violence or intimidation [associated with robbery] must precede or be contemporaneous with the taking of the property.’ ” Royal v. State, 490 So.2d 44, 46 (Fla.1986) (quoting Montsdoca v. State, 84 Fla. 82, 93 So. 157, 159 (1922)). Before being amended by the legislature, section 812.13 defined “robbery” as follows:

(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.

Effective October 1, 1987, however, the robbery statute was amended by the inclusion of the phrase “when in the course of the taking” in subsection 812.13(1) and the addition of section 812.13(3)(b). See Ch. 87-315, ■§ 1, Laws of Fla.; §§ 812.13(1), (3)(b), Florida Statutes (1987).2

The version of the statute applicable to this case, inclusive of the 1987 amendment, reads as follows:

(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
(3)(a) An act shall be deemed “in the course of committing the robbery” if it occurs in an attempt to commit robbery or in flight after the attempt or commission.
(b) An act shall be deemed “in the course of the taking” if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.

§ 812.13, Fla. Stat. (2004) (emphasis added). By amending the statute, the legislature essentially expanded the definition of *856robbery to include acts occurring after the taking, provided that such acts and the taking are part of a “continuous series of acts or events.” Following the 1987 amendment, the “force, violence, assault, or putting in fear” no longer has to be exerted against the person from whom the property was taken, so long as it was exerted in the course of the taking. See Santilli v. State, 570 So.2d 400, 402 (Fla. 5th DCA 1990) (“[T]he continuity of [the shoplifter’s] progression from the store to his forceful act against the [pursuing] officer with his car outside the store justified submission of the robbery offense to the jury.”); Rumph v. State, 544 So.2d 1150, 1151-52 (Fla. 5th DCA 1989) (“[A shoplifter’s] use of force to shove [a store employee] out of his way and into the door as he fled with [stolen property] constitutes the use of force in flight after the taking and provides the evidence to sustain [the shoplifter’s] conviction for robbery.”)

In order to prove robbery in the case before us, the State was required to demonstrate that there was a “taking of money or other property ... from the person or custody of another” and that “in the course of the taking, there [was] the use of force, violence, assault, or putting in fear.” See § 812.13, Fla. Stat. (2004). These statutory requirements were satisfied because 1) there was a taking of money from the person of the Victim’s mother; 2) there was a use of force, violence, assault, or putting in fear by both Thomas and the driver against the Victim; 3) the exertion of such use of force was subsequent to the taking, while the victim was attempting to retrieve the stolen money;3 and 4) the taking and the use of force while fleeing the crime scene comprised a continuous series of acts, rendering the use of force “in the course of the taking.” See id.; Santilli, 570 So.2d at 401-02. We further clarify that there need not be any legal relationship (i.e., mother-son or employer-employee) between the person from whom the property is taken and the person against whom the force, violence, assault, or putting in fear is exerted, provided that the taking and the use of force comprise a continuous series of acts or events. See Santilli, 570 So.2d 400; Rumph, 544 So.2d 1150.

Thomas’ reliance upon Gaiter v. State, 824 So.2d 956 (Fla. 3d DCA 2002), is misplaced. Gaiter is entirely distinguishable from the case before us as it involved a landlord who confronted a would-be thief attempting to steal, from the landlord’s premises, a bicycle belonging to the landlord’s tenant. Unlike the instant case, no evidence was presented in Gaiter to demonstrate that anything was taken from the person of another or that the landlord had custody of the bicycle when it was taken. Thomas places particular reliance on the statement in Gaiter that “[o]ne of the essential elements of robbery is that the person who is placed in fear or assaulted must either own or have custody of the property being taken.” Id. at 957. When read in context, it is evident that this statement is dicta, and we are neither bound nor persuaded by it.

Based upon the foregoing, there is substantial competent evidence to support the conviction of felony murder and the finding of the elements of the predicate felony of robbery by the jury. Accordingly, we affirm.

Affirmed.


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Cited By

  • Rockmore v. State, 114 So. 3d 958 (Fla. 5th DCA 2012)
    …the victim to fall off the car and suffer injuries. Id. at 818. Our sister court concluded that the use of force presented a jury question as to whether it was part of a continuous event under the robbery statute. Id. at 819-20; see Thomas v. State, 36 So. 3d 853 (Fla. 3d DCA 2010) (attempt to knock victim off car used to escape was within continuous series of events). In Royal, Messina, and Thomas, the thieves retained possession of the stolen merchandise throughout the subsequent pursuit, arguably a fact t…
  • Basulto-Rodriguez v. State, 95 So. 3d 403 (Fla. 3d DCA 2012)
    …t be inferred or assumed unless you find that he exercised dominion and control over the contraband. . We review de novo the trial court's denial of a motion for JO A, to determine solely whether the evidence is legally sufficient. Thomas v. State, 36 So. 3d 853 (Fla. 3d DCA 2010); see Pagan v. State, 830 So. 2d 792, 803 (Fla.2002). In reviewing the denial of the motion, we consider the evidence and all reasonable inferences in a light most favorable to the State as the non-moving party. See Williams v. Sta…
  • Teater v. State, 117 So. 3d 1157 (Fla. 3d DCA 2013)
    …PER CURIAM. Affirmed. See §§ 775.084(l)(d) 1. a & 776.08, Fla. Stat.; Curi v. State, 36 So. 3d 853 (Fla. 3d DCA 2010); Ubilla v. State, 8 So. 3d 1200 (Fla. 3d DCA 2009).…

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