ROY GARCIA, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roy Garcia was convicted of robbery, but the appellate court reversed, holding that the evidence did not establish the force, violence, assault, or fear element required for robbery under Florida law. The court directed entry of a judgment for grand theft instead, as the stolen merchandise's value satisfied that crime's requirements.
The court held that Garcia could not be convicted of robbery because he did not use force, violence, assault, or put the security guard in fear in connection with the taking of property as part of a continuous series of acts. The conviction was reversed and directed to be reduced to grand theft.
[1] A conviction for robbery requires proof of force, violence, assault, or putting in fear used during the taking of property.
[2] Force or fear used in the course of taking property may be subsequent to the taking if the force and the act of taking constitute a continuous series of acts or events.
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“the 'force [violence, assault, or putting in fear] and the act of taking constitute a continuous series of acts or events'”
Establishes the statutory requirement for robbery when force is used subsequent to the taking of property
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Join FLexlaw to unlock all legal intelligenceGarcia and a companion were observed by a K-Mart security guard attempting to throw a duffle bag of merchandise over a fence. When approached, they ab…
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PARKER, Judge.
Roy Garcia appeals his robbery conviction. We agree with Garcia’s argument that the trial court erred in failing to grant his motion for judgment of acquittal as to the charge of robbery, concluding that the evidence does not support the statutory requirement of force, violence, assault, or putting in fear used during the taking.
The state charged Garcia with robbery with a weapon, and the jury found him guilty of robbery. In this case, a security guard observed Garcia and a companion in the patio area of a K-Mart store. Garcia was inside the store fence attempting to throw a duffle bag filled with K-Mart merchandise over the fence to his companion. When approached by the security guard, the two men abandoned the bag and ran. Garcia ran out of the store and through the parking lot. In a nearby parking lot, Garcia slowed down and pointed a handgun at the pursuing security guard. Garcia was later arrested and admitted that he possessed a BB pistol which he threw in a canal. The weapon was not recovered.
Section 812.13, Florida Statutes (1991), the robbery statute, states that the “force [violence, assault, or putting in fear] used in the course of taking property may be subsequent to the taking if the force [violence, assault, or putting in fear] ‘and the act of taking constitute a continuous series of acts or events.’ ” Simmons v. State, 551 So. 2d 607, 608 (Fla. 5th DCA 1989) (quoting in part § 812.13(3)(b), Fla. Stat. (1987)). In State v. Baker, 540 So. 2d 847 (Fla. 3d DCA 1989), where the defendant had abandoned a video tape recorder in the mall before he struggled with the security guard and where he made no attempt to grab the abandoned machine and run, the Third District concluded no robbery had occurred. There are no distinguishing facts that would call for a different result in this case. Since Garcia did not place the security guard in fear during a continuous series of acts or events in connection with the taking of property, he could not be convicted of robbery.1 We reverse the conviction with directions to the trial court to enter judgment for grand theft and resentence Garcia, as the state’s evidence did establish that the property in the bag was valued at $302.69, an amount which establishes the crime of grand theft.
Reversed and remanded with directions.
SCHOONOVER, A.C.J., and FRANK, J., concur. . Garcia acknowledges that he did not raise this issue during the trial; however, it is fundamental error to convict a defendant of a crime that never occurred. See Burrell v. State, 601 So. 2d 628 (Fla. 2d DCA 1992).
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Peterson v. State, 24 So. 3d 686 (Fla. 2d DCA 2009)…f force, abandoned property, and then used force to leave; under such circumstances, use of force was not “part of ‘a continuous series of acts or events’ involved with taking of property”) (quoting in part § 812.13(3)(b)); see also Garcia v. State, 614 So. 2d 568 (Fla. 2d DCA 1993) (relying on Baker to reverse robbery conviction under similar circumstances where use of force followed abandonment of property). Under Peterson’s theory, he was guilty only of the misdemeanor offense of resisting a merchant. See…
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Rockmore v. State, 140 So. 3d 979 (Fla. 2014)…endant’s robbery conviction based on insufficient evidence because “ ‘the taking was completed without any use of force and the property abandoned before any force was employed’ ”) (quoting Simmons, 551 So. 2d at 608). Likewise, in Garcia v. State, 614 So. 2d 568 (Fla. 2d DCA 1993), the Second District reversed the defendant’s robbery conviction. There, the defendant “attempted] to throw a duffle bag filled with [stolen] merchandise over the [store’s] fence to his companion. When approached by the security g…1 / 2
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Lowman v. Moore, 744 So. 2d 1210 (Fla. 2d DCA 1999)…302 (Fla. 5th DCA 1995). Lowman’s conviction on this offense therefore is flawed. Convicting a defendant of a crime when an essential element of the crime has not been proven and could not have been proven is fundamental error. See Garcia v. State, 614 So. 2d 568 (Fla. 2d DCA 1993); Burrell v. State, 601 So. 2d 628 (Fla. 2d DCA 1992). The failure to raise this issue on direct appeal constitutes ineffective assistance of appellate counsel. See Ferrer v. Manning, 682 So. 2d 659 (Fla. 3d DCA 1996). Because the…
Authorities Cited
- Burrell v. State, 601 So. 2d 628 (Fla. 2d DCA 1992)
- Hildagarde Simmons v. State, 551 So. 2d 607 (Fla. 5th DCA 1989)
- Hodin v. Hodin, 540 So. 2d 847 (Fla. 3d DCA 1989)
- State v. Baker, 540 So. 2d 847 (Fla. 3d DCA 1989)