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Harris v. State

District Court of Appeal of Florida, Fourth District
Dec 27, 1991
589 So. 2d 1006 (Fla. Dist. Ct. App. 1991)

Summary

holding that, where victim discovered money and jewelry missing two days after sexual battery, defendant could not be convicted of robbery because, "[w]here the victim, at the time, is not even aware of the taking, it is not a taking by force or putting in fear"

Summary of this case from State v. Mitsuda

Opinion

No. 90-0303.

November 20, 1991. Rehearing and Clarification Denied December 27, 1991.

Appeal from the Circuit Court, Palm Beach County, Thomas E. Sholts, J.

Gary S. Israel, Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Dawn S. Wynn, Asst. Atty. Gen., West Palm Beach, for appellee.


We reverse appellant's conviction as to count III, robbery, and reverse the sentence as to all counts. In all other respects, appellant's convictions on counts I and II, burglary and sexual battery, are affirmed.

The robbery charge is founded on the victim's discovery subsequent to the sexual battery, and after the appellant had left, that her money and jewelry were missing. The sexual battery occurred in the victim's bedroom. On the night of the attack the money was taken from a purse in the living room. She realized that the jewelry was missing from her dresser two days later. Clearly, there is no evidence in the record linking the taking of the money and jewelry with any force or threat of force used in the commission of the sexual battery.

To distinguish the offense of robbery from the offense of theft, force or threat must be used in an effort to obtain or retain the victim's property. Cf. State v. Baker, 540 So.2d 847 (Fla. 3d DCA 1989). Where the victim, at the time, is not even aware of the taking, it is not a taking by force or putting in fear. See S.W. v. State, 513 So.2d 1088 (Fla. 3d DCA 1987).

With respect to the sentences, the appellee concedes that the trial court erred in departing from the sentencing guidelines. See Hernandez v. State, 575 So.2d 640 (Fla. 1991); State v. Cote, 487 So.2d 1039 (Fla. 1986). Upon remand, resentencing shall be within the guidelines.

DELL and WARNER, JJ., concur.


Summaries of

Harris v. State

District Court of Appeal of Florida, Fourth District
Dec 27, 1991
589 So. 2d 1006 (Fla. Dist. Ct. App. 1991)

holding that, where victim discovered money and jewelry missing two days after sexual battery, defendant could not be convicted of robbery because, "[w]here the victim, at the time, is not even aware of the taking, it is not a taking by force or putting in fear"

Summary of this case from State v. Mitsuda

In Harris v. State, 589 So.2d 1006 (Fla. 4th DCA 1991) (Harris I) this court reviewed Harris' convictions and sentences for burglary, sexual battery, and robbery in case number 88-16248 wherein he was sentenced concurrently to 30 years, life, and fifteen years, respectively.

Summary of this case from Harris v. State
Case details for

Harris v. State

Case Details

Full title:GERALD HARRIS, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: Dec 27, 1991

Citations

589 So. 2d 1006 (Fla. Dist. Ct. App. 1991)

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