AMOS JOHN SLOAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's conviction for robbery and two aggravated assaults was partially affirmed; the assault on the robbery victim merged into the robbery offense and could not be separately punished, but the assault on a bystander was a distinct crime warranting separate punishment.
An assault on a robbery victim that constitutes the force element of the robbery merges into the robbery offense and cannot support a separate conviction, but an assault on a different person at the scene is a distinct crime subject to separate punishment.
[1] An assault committed as the force element of a robbery merges into the robbery offense and cannot support a separate conviction, but an assault against a different victim…
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Join FLexlaw to unlock all legal intelligence“This assault being the force involved in the robbery merged into and became part of the offense of robbery.”
Explaining why the assault on the robbery victim could not support a separate conviction.
Amos John Sloan robbed Guinevere Bulatowicz and assaulted her with a baseball bat during the robbery. He also assaulted Richard Mitchell, a bystander …
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SCHEB, Judge.
The defendant, Amos John Sloan, was convicted of robbery and two counts of aggravated assault. He was sentenced to life imprisonment on the conviction of robbery and to five years imprisonment on each of the aggravated assault charges, with all sentences to run consecutively.
We have examined the record and briefs and find the only question on appeal which merits discussion is whether the trial court erred in sentencing the defendant on the convictions of aggravated assault in addition to the sentence for the crime of robbery.
The victim of the robbery was one Guinevere Bulatowicz. She was assaulted by the defendant with a baseball bat during the commission of the robbery. This assault being the force involved in the robbery merged into and became part of the offense of robbery. Hernandez v. State, Fla.App.2d 1973, 278 So. 2d 307. Not so as to the assault upon Richard Mitchell who was at the scene of the robbery and was also assaulted by the defendant with the baseball bat. This assault having been perpetrated against a different victim obviously did not merge into the robbery, nor was it part of the same transaction as the robbery merely because the two crimes were committed contemporaneously. Ellis v. State, Fla.App.2d 1974, 298 So. 2d 527; Harris v. State, Fla.App.2d 1973, 286 So. 2d 32. Accordingly, the judgment and sentence of the defendant for robbery are affirmed. The judgment and sentence for aggravated assault upon Guinevere Bulatowicz are vacated; and the judgment and sentence for aggravated assault on Robert Mitchell are affirmed.
McNULTY, C. J., concurs.
BOARDMAN, J., dissents in part with opinion.
BOARDMAN, Judge
(dissenting in part).
For the reasons stated herein, I respectfully dissent from that part of the majority opinion pertaining to the disposition of the aggravated assault committed upon Guinevere Bulatowicz holding that said offense merges into the robbery under the rationale of Hernandez v. State, Fla.App.2d, 1973, 278 So. 2d 307; for, as I read the record, the aggravated assault was a separate and distinct crime from that of the robbery.
Admittedly, a close question is presented; but I find that there was competent substantial evidence in the record disclosing that the aggravated assault occurred after the money had been taken. Further, a co-participant in the crime testified that the appellant remained behind for approximately five minutes with the baseball bat in his possession while the others waited for him outside the store in the getaway car. The testimony further shows that both victims and a dog were severely beaten. Upon consideration of all of these facts, I reach the unalterable conclusion that the assault was a separate and distinct crime from the robbery.
In all other aspects I agree with the majority opinion, but would affirm the sen-tente of aggravated assault upon Guinevere Bulatowicz.
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Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978)…0 So. 2d 44 (Fla. 1st DCA 1976), that the trial court erred in adjudicating defendant guilty of two lesser included offenses of grand larceny which were part of higher robbery offenses for which defendant was also convicted. See also Sloan v. State, 323 So. 2d 278 (Fla.2d DCA 1975) (assault merged into robbery). In Heisterman v. State, 327 So. 2d 839 (Fla.3d DCA 1976), the defendant committed only one criminal act in shooting into the occupied dwelling and the court, holding that only the assault with intent…
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Hegstrom v. State, 388 So. 2d 1308 (Fla. 3d DCA 1980)…64 So. 2d 497 (Fla. 2dDCA 1978); Hernandez v. State, 278 So. 2d 307 (Fla. 2dDCA 1973); Yost v. State, 243 So. 2d 469 (Fla. 3dDCA 1971) (setting aside the sentence only), with Heisterman v. State, 327 So. 2d 839 (Fla. 3dDCA 1976); and Sloan v. State, 323 So. 2d 278 (Fla. 2dDCA 1975) (setting aside the judgment). Only Kimbrough v. State, 356 So. 2d 1294 (Fla. 4thDCA 1978), and, to a lesser extent, Taylor v. State, 330 So. 2d 44 (Fla. IstDCA 1976), openly addressed the validity vel non of the judgment and conclu…
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Lindsey v. State, 416 So. 2d 471 (Fla. 4th DCA 1982)…ct that the defendants bound and gagged their victim. As I view it, these acts were part of the force used to effectuate the robbery and, therefore, the crime of false imprisonment merged into the greater crime of robbery. See, e.g., Sloan v. State, 323 So. 2d 278 (Fla. 2d DCA 1975); Hernandez v. State, 278 So. 2d 307 (Fla. 2d DCA 1973); Adkins, Florida Criminal Law and Procedure, § 32.11 (4th ed. 1977). The First District recently applied a similar rationale and concluded that the confinement was “simply inc…
Authorities Cited
- Hernandez v. State, 278 So. 2d 307 (Fla. 2d DCA 1973)
- Ellis v. State, 298 So. 2d 527 (Fla. 2d DCA 1974)
- Harris v. State, 286 So. 2d 32 (Fla. 3d DCA 1973)