HARLIN WAYNE MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Harlin Mitchell appealed his convictions for first-degree burglary, first-degree arson, robbery, attempted second-degree murder, and grand theft. The appellate court reversed his first-degree burglary conviction because the evidence was insufficient to prove an assault—an essential element of that charge—and remanded for entry of a lesser included offense of second-degree burglary. The court affirmed the remaining convictions, including robbery and attempted second-degree murder.
The first-degree burglary conviction must be reversed because the evidence was insufficient to prove assault—specifically, the victim never had a well-founded fear of imminent violence because he was rendered unconscious immediately and never aware of the defendant's presence. The court remanded for entry of judgment for the lesser included offense of second-degree burglary. The convictions for robbery and attempted second-degree murder were properly upheld despite arising from the same act of violence because they involve several distinct elements beyond the shared force or violence component.
[1] First-degree burglary requires proof of an assault, which includes an intentional threat of violence coupled with an apparent ability to do so and creating a well-founded…
[2] A conviction for first-degree burglary cannot stand if the victim was unconscious and unaware of the defendant's presence at the time of the alleged assault.
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“Since the evidence in the present case is insufficient to show that the victim had a well founded fear of imminent violence, an essential element of criminal assault has not been proven.”
Establishes the controlling legal principle that the victim's lack of awareness due to being struck unconscious defeated the assault element required for first-degree burglary.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMitchell burglarized a commercial structure and started a fire. After gaining entry, he struck the victim, John Hansen, over the head with a pipe, ren…
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GREEN, OLIVER L., Jr., Associate Judge.
This is an appeal from a conviction of first degree burglary, first degree arson, robbery, attempted second degree murder, and grand theft. While defendant has raised several points on appeal, the only one with merit concerns the sufficiency of the evidence to support the conviction of first degree burglary.
Basically, the facts of this case are that the defendant burglarized a commercial structure. After gaining entry, he started a fire and then observed the victim, John Hansen. The defendant walked behind Hansen and struck him over the head with a pipe. John Hansen, rendered unconscious by the blow, was never aware of defendant’s presence. Defendant searched through the unconscious victim’s pockets and, finding nothing, was in the process of leaving the premises when he observed and stole a vehicle which belonged to an em ployee, Anna Stamalis, but which was in the care, custody or control of Hansen.
The information charged burglaiy in the course of which defendant made an assault upon John Hansen. To sustain this charge of first degree burglary, there must be proof of an assault. Section 810.02 Florida Statutes (1979). Section 784.011 Florida Statutes (1979), defines an assault as:
An intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.
Since the evidence in the present case is insufficient to show that the victim had a well founded fear of imminent violence, an essential element of criminal assault has not been proven. See Barrington v. State, 338 So. 2d 85 (Fla. 1st DCA 1976); State v. Pinder, 375 So. 2d 836 (Fla.1979).
The only other point which requires discussion is whether the defendant can be convicted and sentenced for both the crime of robbery and attempted second degree murder. It is implicit in our holding that robbery may be committed by methods other than by an assault, or putting in fear. F.S. 812.13(1). The crime of robbery and the crime of attempted second degree murder may involve a single act of force or violence, as in this case. Even so, there are several other elements which are not similar. We conclude that the defendant was properly convicted and sentenced for the crimes of robbery and attempted second degree murder. State v. Hegstrom, 401 So. 2d 1343 (Fla.1981); Faison v. State, 399 So. 2d 19 (Fla. 3d DCA 1981); Slater v. State, 316 So. 2d 539 (Fla.1975); and Section 775.021(4), Florida Statutes (1979).
The judgment and sentence of burglary in the first degree is reversed. Since the evidence at trial established that the defendant was guilty of burglary of a structure in which there was a human being at the time defendant entered, a lesser offense necessarily included in the charge upon which the defendant went to trial, we remand this cause to the trial court with directions to enter a judgment and sentence for burglary of the second degree. See Lopez v. State, 345 So. 2d 757 (Fla. 4th DCA 1977).
The judgments and sentences are severally affirmed in all other respects.
AFFIRMED IN PART; REVERSED IN PART; and remanded with directions.
BERANEK, J., concurs.
OWEN, WILLIAM C„ Jr., (Retired) Associate Judge, concurs specially with opinion.
OWEN, WILLIAM C., Jr., Associate Judge,
concurring specially:
I concur in the court’s decision, and in the opinion authored by Judge Green, but would add these thoughts. This case quite vividly point up the reason why assault, as a criminal offense, should not include the element of putting in fear, a subject upon which this author wrote in Clark v. State, 318 So. 2d 487 (Fla. 4th DCA 1975), reversed 337 So. 2d 798 (Fla.1976). I again express the hope, as I did then, that the Legislature would revise Section 784.011, Florida Statutes, so as to eliminate the element of the putting in fear, a proper element of the civil tort of assault. Failing in this, the Legislature should amend Section 810.-02(2)(a), Florida Statutes, to read “makes an assault or battery upon any person,” thereby making the statute say what the learned trial judge felt the Legislature meant to say.
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Jones v. State, 652 So. 2d 346 (Fla. 1995)…ntimidation and the taking constitute a continuous series of acts or events. A victim does not have to perceive the force or violence used in the course of a taking in order for the element of force or violence to be present. See Mitchell v. State, 407 So. 2d 343 (Fla. 4th DCA 1981) (element of force or violence supported robbery conviction where victim was unaware of defendant’s presence because defendant struck victim from behind rendering him unconscious). Under the plain language of the robbery statute,…
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Barnhill v. State, 471 So. 2d 160 (Fla. 5th DCA 1985)…t, and was at that point striking at the victim in retaliation for her resistance. Since there was a sufficient factual basis to support the jury’s conviction for both crimes charged, we do not reach the double jeopardy issue. See Mitchell v. State, 407 So. 2d 343 (Fla. 4th DCA 1981). The judgment is accordingly AFFIRMED. [*161] FRANK D. UPCHURCH, Jr., J., concurs. COWART, J., concurring specially with opinion. . §§ 777.04(1) & 812.13(2)(a), Fla.Stat. (1981). . § 784.045(1)(b), Fla.Stat. (1981). .U.S.CON…
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Watson v. State, 95 So. 3d 977 (Fla. 2d DCA 2012)…The recital of these facts suggests that the State had a “slam dunk” case against Mr. Watson for strong-arm robbery under section 812.13(1), (2)(c), Florida Statutes (2010). See Jones v. State, 652 So. 2d 346, 349-50 (Fla.1995); Mitchell v. State, 407 So. 2d 343, 343-44 (Fla. 4th DCA 1981). Instead, for reasons unexplained in our record, the State charged him with the abuse of an elderly person under section 825.102(1).2 Strong-arm robbery is a second-degree felony, and abuse of an elderly person is a third…
Authorities Cited
- State v. Pinder, 375 So. 2d 836 (Fla. 1979)
- Darius Slater v. State, 316 So. 2d 539 (Fla. 1975)
- State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981)
- State v. Rivers, 401 So. 2d 1343 (Fla. 1981)
- Stevens v. State, 399 So. 2d 19 (Fla. 3d DCA 1981)
- Clark v. State, 318 So. 2d 487 (Fla. 4th DCA 1975)
- Clark v. State, 337 So. 2d 798 (Fla. 1976)
- First Funding Corp. v. Shattuck, 345 So. 2d 757 (Fla. 4th DCA 1977)
- Barrington v. State, 338 So. 2d 85 (Fla. 1st DCA 1976)