Larkins v. StateLarkins v. State
Jim Smith, Atty. Gen., Henri C. Cawthon, Asst. Atty. Gen., Tallahassee, for appellee.
MILLS, Judge.
Larkins appeals his conviction of two counts of aggravated assault and resisting arrest with violence. He also challenges his sentence, imposed pursuant to the sentencing guidelines. We affirm.
Larkins and another man entered a convenience store where one of the victims, Wirth, was standing at the counter holding change from a $10 bill in her hand. Larkins, who possessed a gun but was not displaying it, grabbed the money and held Wirth while his accomplice emptied the register. The two then fled the scene with an officer in pursuit. Larkins was cornered in a department store and inflicted numerous bite wounds to the officer‘s hand and arm before being subdued.
Larkins was charged with two counts of armed robbery, two counts of aggravated assault, resisting an officer with violence and battery on a law enforcement officer. At the close of the evidence during his jury trial, Larkins moved for judgment of acquittal as to the armed robbery of Wirth, which was denied. He was found guilty on all counts and sentence was imposed within the sentencing guidelines. Larkins’ point total, including 16 points for “moderate” victim injury, corresponded to a recommended sentence range of 9 to 12 years. A 12-year sentence was imposed without objection.
Larkins alleges first that he should not have been convicted of the two aggravated assault charges in that they are lesser included offenses of armed robbery. It is similarly alleged that resisting arrest with violence is a lesser included offense of battery on a law enforcement officer and it was therefore error to convict him of the former offense. We cannot agree.
Offenses are separate if each requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
An armed robbery is 1) the taking of money or property 2) by force, violence, assault or putting in fear 3) while carrying a firearm.
Resisting an officer with violence consists of 1) knowingly 2) resisting, obstructing or opposing a law enforcement officer 3) in the lawful execution of any legal duty 4) by offering or doing violence to his person.
It was not error to deny Larkins’ motion for judgment of acquittal as to the charge of armed robbery of Wirth. The fact that Larkins did not display his gun is immaterial. Carrying a weapon during a robbery is sufficient to enhance the charge.
Larkins also claims, however, that because he took less than $10 from Wirth, without first placing her in fear, he should not have been charged with robbery, but rather petty larceny. We disagree.
Robbery is a taking, not only by putting in fear, but by force or violence as well. The money was in Wirth‘s physical possession, and Larkins grabbed it from her. By his motion for acquittal, Larkins conceded these facts and all reasonably inferable conclusions. Spinkellink v. State, 313 So. 2d 666, 670 (Fla. 1975) cert. den. 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). It was therefore reasonable for the jury to conclude that, given the circumstances, sufficient force was exercised to fulfill the requirements of the robbery statute.
Finally, Larkins alleges that the trial court erred in scoring him for “moderate” rather than “slight” victim injury when calculating his sentencing guidelines score. We can locate no authority permitting him to raise such an error absent objection, since the sentence was within the guidelines range and reduction of the score to reflect “slight” injury results in a point total corresponding to the identical range within which he was sentenced.
Affirmed.
SMITH and THOMPSON, JJ., concur.