INEZ HOGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1986-08-28
No. 86-171
ORFINGER and COWART, JJ., concur.
493 So. 2d 84 Florida District Court of Appeal, Fifth District (1986) Positive Treatment
Cited by 6 cases

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Holding

A defendant cannot be convicted of robbery if the force used occurs after the taking of merchandise is complete.

Facts & Procedural History

Defendant was observed leaving a store with merchandise, pushed a cart into a security agent, and then cut him with a knife. She was convicted of arme…

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Topics
Second Degree Grand Theft Simple Battery Grand Theft Armed Robbery

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Opinion of the Court
COBB, Judge.

COBB, Judge.

Inez Hogan was observed by a security agent leaving an Orlando department store with a cart full of merchandise. The agent subsequently stopped Hogan outside the store, whereupon Hogan pushed the cart with the merchandise into him and attempted to flee. When the security guard grabbed the defendant, Hogan cut him with her pocket knife. Hogan was subsequently convicted of armed robbery and simple battery. The issue before this court is whether, under these facts, Hogan can be convicted of robbery.

This case is controlled by the recent Florida Supreme Court decision of Royal v. State, 490 So. 2d 44 (Fla.1986). Royal held that a defendant cannot be convicted of robbery unless the force element of robbery occurs prior to or contemporaneous with the taking of the merchandise. Thus, according to Royal, since the theft is complete once the object is moved off the shelf, the crime of robbery of merchandise, as a practical matter, cannot occur in a self-service store unless the robber originally enters the store displaying a weapon.

In the instant case, the force which forms the basis of the robbery charge (stabbing with the knife) truly occurred after the “taking,” since the defendant virtually abandoned the property by pushing the cart toward the security guard prior to her use of force.

The record clearly shows defendant’s guilt of second-degree grand theft; accordingly, we reverse the armed robbery conviction, affirm the judgment for simple battery, and remand for entry of judgment and sentence on second-degree grand theft. See Kelly v. State, 490 So. 2d 1388 (Fla. 5th DCA 1986).

REVERSED in part; AFFIRMED in part; and REMANDED.

ORFINGER and COWART, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987)
    …slaughter, or if it had also found from the record that Tillman did not have the requisite criminal intent. Since the supreme court decided Royal, this issue has reappeared in several cases before the Fifth District Court of Appeal. Hogan v. State, 493 So. 2d 84 (Fla. 5th DCA 1986), set aside a robbery conviction based on Royal. In Flarity v. State, 499 So. 2d 18 (Fla. 5th DCA 1986), the defendant pumped gasoline into his car at a self-service station. Thereafter the station attendant was forced off the sid…
  • Foster v. State, 596 So. 2d 1099 (Fla. 5th DCA 1992)
    …922); and much more recently in Royal v. State, 490 So. 2d 44 (Fla.1986), quashing 452 So. 2d 1098 (Fla. 5th DCA 1984). See also, Milam v. State, 505 So. 2d 34 (Fla. 5th DCA 1987); Flarity v. State, 499 So. 2d 18 (Fla. 5th DCA 1986); Hogan v. State, 493 So. 2d 84 (Fla. 4th DCA 1986); Kelly v. State, 490 So. 2d 1383 (Fla. 5th DCA 1986); Annot. Use of Force or Intimidation in Retaining Property or In Attempting to Escape, Rather Than in Taking Property, as Element of Robbery, 94 A.L.R.3d 643 (1979). Common la…
  • Milam v. State, 505 So. 2d 34 (Fla. 5th DCA 1987)
    …Force used later to effect an escape or exit from a retail store after goods have been taken from a shelf comes too late to qualify as an element of the crime of robbery. See also Flarity v. State, 499 So. 2d 18 (Fla. 5th DCA 1986); Hogan v. State, 493 So. 2d 84 (Fla. 5th DCA 1986); Walker v. State, 493 So. 2d 77 (Fla. 4th DCA 1986); Kelly v. State, 490 So. 2d 1383 (Fla. 5th DCA 1986). This holding makes it impossible to prove a robbery in the context of an article taken from the shelf of a self-service sto…

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