LEWIS ANDREW FLAGLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lewis Andrew Flagler was convicted of robbery after entering a stopped car and taking a handbag containing $400 from a woman driver with her young child present. The Fourth District Court of Appeal affirmed the conviction, rejecting the defendant's arguments that the statutory elements of fear were absent and that the trial court erred in not instructing the jury on larceny as a lesser included offense.
The court affirmed the robbery conviction, holding that the victim's affirmative testimony that she was in fear was sufficient, and alternatively, the circumstances were such as to ordinarily induce fear in a reasonable person. The court also held that no instruction on larceny was required because the defendant did not request it, did not object to the charge given, presented an alibi defense rather than evidence supporting a lesser offense, and there was no evidence from either side that could have supported a finding of guilt on the lesser charge.
“Robbery is defined in F.S.A. § 813.011 as follows: 'Whoever, by force, violence or assault or putting in fear, feloniously robs, steals and takes away from the person or custody of another, money or other property which may be the subject of larceny'”
Establishes the statutory definition of robbery that the court applied to analyze whether the defendant's conduct satisfied the statutory elements.
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Join FLexlaw to unlock all legal intelligenceA housewife stopped her car at a stop sign with her four-year-old child as her only passenger. A stranger (defendant) opened the passenger door withou…
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The defendant, Louis Andrew Flagler, was convicted of robbery. He appeals. We affirm.
One night a car stopped at a stop sign. It was operated by a housewife. Seated beside her as her only passenger was her four-year old child. The defendant, a stranger, opened the front door on the passenger side without warning. He entered the car and sat down beside the driver and child. An appreciable period passed without action or word spoken. Defendant then picked up the housewife’s handbag containing $400.00 and other valuables and •exited, slamming the car door. The driver locked the car door and she and the child screamed. Defendant attempted without success to re-enter the car. The housewife drove away for help. She testified that she was afraid and that she said nothing while he was in the car because she was afraid he would do something to her child.
Robbery is defined in F.S.A. § 813.011 as follows:
“Whoever, by force, violence or assault or putting in fear, feloniously robs, steals and takes away from the person or custody of another, money or other property which may be the subject of larceny * * (Emphasis added).
The defendant contends, in the light of the statutory definition, that the factors of “by force, violence or assault or putting in fear” are absent in the instant case. We disagree.
First, the prosecutrix testified affirmatively that she was in fear at the time and this was sufficient. Second, the rule is that if the circumstances attendant to the robbery were such as to ordinarily induce fear in the mind of a reasonable man then the victim may be found to be in fear and actual fear need not be strictly *214and precisely shown. Thomas v. State, Fla.App.1966, 183 So.2d 297. Surely the circumstances here outlined abundantly meet the test.
Defendant’s second point is that the trial court committed error in not instructing the jury sua sponte upon the crime of larceny, it being a lesser included offense. In support of his position he urges the case of Allison v. State, Fla.App.1964, 162 So.2d 922.
We record from the record certain critical criteria used in our evaluation. The defendant represented by counsel did not request a larceny charge or any other instruction. He did not object to the charge as given by the trial judge. The defendant testified and supported his defense of alibi. He claimed to be without knowledge as to the stop sign events, saying that he was engaged elsewhere. The only witness as to the crime happenings was the prose-cutrix who testified as here outlined. In other words, defendant’s defense was by way of avoidance. There was no evidence from either side of the case in mitigation or to support a lesser offense. In this posture of things the jury would be authorized to return a verdict of guilty of robbery or not guilty by reason of the establishment of the alibi defense. See Silver v. State, Fla.App.1965, 174 So.2d 91.
Does Allison v. State, supra, have any bearing? We think not, for two reasons. First, there the appellant specifically requested the charge on the lesser offense. Second, we think that in the Allison case, different from here, the evidence could have supported a finding of guilty on the lesser charge. This distinction was recognized in Silver v. State, supra.
There being no issue as to the housewife’s fear, the only proof being sufficient and as stated, and there being no proof whereby the jury could have found the commission of a lesser offense, we feel the conviction judgment should be affirmed. Johnson v. State, Fla.App.1965, 173 So.2d 487.
Affirmed.
SMITH, C. J., and ALLEN. WILLIAM P., Associate Judge, concur.
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Citator
Cited By (12 total)
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Flagler v. State, 198 So. 2d 313 (Fla. 1967)…THOMAS, Justice. The petitioner was convicted of robbery and appealed to the District Court of Appeal, Fourth District, 189 So. 2d 212, where the judgment was affirmed. The matter was then brought to this court on a petition for certiorari based on an apparent conflict between the decision rendered by the District Court and one by the District Court of Appeal, Third District, in T…
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Brown v. State, 397 So. 2d 1153 (Fla. 5th DCA 1981)…to the robbery were such as to ordinarily induce fear in the mind of a reasonable person, then the victim may be found to be in fear for the purpose of the robbery statute, and actual fear need not be strictly and precisely shown. Flagler v. State, 189 So. 2d 212 (Fla. 4th DCA 1966), affirmed 198 So. 2d 313 (Fla.1967); Thomas v. State, 183 So. 2d 297 (Fla. 3d DCA 1966). This is so even where the victim specifically states that he was never in fear during the course of the robbery. Thomas, supra. The victim’s…
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Smithson v. State, 689 So. 2d 1226 (Fla. 5th DCA 1997)…to the robbery were such as to ordinarily induce fear in the mind of a reasonable person, then the victim may be found to be in fear for the purpose of the robbery statute, and actual fear need not be strictly and precisely shown. Flagler v. State, 189 So. 2d 212 (Fla. 4th DCA 1966), affirmed 198 So. 2d 313 (Fla.1967); Thomas v. State, 183 So. 2d 297 (Fla. 3d DCA 1966). This is so even where the victim specifically states that he was never in fear during the course of the robbery. Thomas, supra. The victim’s…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allison v. State, 162 So. 2d 922 (Fla. 1st DCA 1964)
- Thomas v. State, 183 So. 2d 297 (Fla. 3d DCA 1966)
- Silver v. State, 174 So. 2d 91 (Fla. 1st DCA 1965)
- Johnson v. State, 173 So. 2d 487 (Fla. 1st DCA 1965)