VINCENT ANTHONY BUSCH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellant challenged his armed robbery conviction on two grounds: that his confession was obtained in violation of the Fourth Amendment through a warrantless home arrest, and that he could not be convicted of armed robbery when he did not physically possess the firearm. The court affirmed his conviction, holding that accomplices may be charged as principals in the first degree for crimes involving firearms when they aid and abet the principal offender.
The trial court properly denied suppression of the confession obtained from the warrantless arrest. Under Florida Statute § 777.011, an aider and abettor is a principal in the first degree to the crime aided and abetted, and therefore appellant could be properly convicted of armed robbery even though the firearm was possessed by his accomplice, not by him.
[1] An arrest in a home without a warrant is permissible if the state demonstrates exigent circumstances.
[2] An aider and abettor can be charged, convicted, and punished as a principal in the first degree for the offense they aid and abet.
Previewing 2 of 4 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“That statute makes an aider and abettor a principal in the first degree to the crime he aids and abets.”
Establishes that accomplices may be charged and convicted as principals for crimes committed by the principal offender.
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Join FLexlaw to unlock all legal intelligenceAppellant was arrested without a warrant in his home and subsequently confessed. He was charged with robbery committed while carrying a firearm, thoug…
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McCORD, Chief Judge.
Appellant contends first that the trial judge should have suppressed his confession because it was the result of an arrest of appellant in his home without a warrant and with no showing by the state of exigent circumstances that would have excused the absence of an arrest warrant.
The trial court was correct in denying appellant’s motion to suppress. See State v. Perez, 277 So. 2d 778 (Fla.1973).
Appellant next contends that the trial court erred by instructing the jury that he could be found guilty of robbery committed while carrying a firearm when the evidence conclusively established that the firearm was in the possession of appellant’s accomplice and that the judgment and sentence for armed robbery are, therefore, not supported by the evidence. Appellant cites Earnest v. State, 351 So. 2d 957, Fla., opinion filed August 31, 1977, rehearing denied December 6, 1977. There, the Supreme Court construed § 775.-087(2), Florida Statutes (1975), which provides that any person who is convicted of robbery and who had in his possession a firearm shall be sentenced to a minimum term of imprisonment of three years. The court held that the three-year minimum term under the statute applied only to physical possession of a firearm by a defendant rather than constructive possession. Here, as in Earnest, the appellant, who did not have a firearm, was convicted as an aider and abettor of the crime in which he participated — robbery in which the offender carried a firearm or other deadly weapon [§ 812.13(1) and (2)(a), Florida Statutes (1975)], rather than robbery in which the offender carried no firearm, deadly weapon, or other weapon [§ 812.13(1) and (2)(c), Florida Statutes (1975)]. Here, unlike in Earnest, appellant was not sentenced to minimum three-year term of imprisonment; thus, we are not concerned with § 775.-087(2).
The Supreme Court in Earnest did not in any way abrogate § 777.011, Florida Statutes (1975), dealing with principals in the first degree. That statute provides that whoever aids, abets, counsels, hires or otherwise procures an offense to be committed and such offense is committed is a principal in the first degree and may be charged, convicted and punished as such whether he is or is not actually or constructively present at the commission of such offense. That statute makes an aider and abettor a principal in the first degree to the crime he aids and abets. Here, the evidence clearly shows that appellant was present aiding and abetting his accomplice in the accomplice’s commission of the crime of robbery with a firearm.
Thus, appellant is guilty as a principal in the first degree of that crime rather than the crime of robbery in which the offender carried no firearm, deadly weapon, or other weapon.
AFFIRMED.
BOYER, J., and McLANE, RALPH M., Associate Judge, concur.
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Busch v. State, 392 So. 2d 272 (Fla. 1st DCA 1980)…McCORD, Judge. The United States Supreme Court has vacated our judgment in this case [355 So. 2d 488 (Fla. 1st DCA 1978)] and remanded the cause for further consideration, 446 U.S. 902, 100 S.Ct. 1826, 64 L.Ed.2d 255. On remand, we are to consider whether the holding in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), requir…
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Authorities Cited
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- State v. Perez, 277 So. 2d 778 (Fla. 1973)